SÍOCHÁNA ACT 2005 C M J F C · inquiry pursuant to section 109 of the garda sÍochÁna act, 2005...

INQUIRY PURSUANT TO SECTION 109 OF THE GARDA

SÍOCHÁNA ACT, 2005

CHAIRED BY

THE HONOURABLE MR JUSTICE FRANK CLARKE

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TABLE OF CONTENTS

GLOSSARY OF TERMS AND ABBREVIATIONS ............................................................... 3

PART I - INTRODUCTION ..................................................................................................... 3

(1) General Observations ...................................................................................................... 4

(2) Preliminary Matters: ....................................................................................................... 7

(i) Appearances: ................................................................................................................ 7

(ii) Witnesses: ................................................................................................................... 8

(iii) The Terms of Reference: ........................................................................................... 9

(iv) GSOC Personnel and the GSOC organisational structure: ........................................ 9

(3) Summaries:..................................................................................................................... 11

(i) Summary Timeline: ................................................................................................... 11

(ii) Summary of Conclusions: ......................................................................................... 14

(iii) Summary of Recommendations ............................................................................... 22

PART II – THE PROCESS ..................................................................................................... 25

(4) The Overall Process: ..................................................................................................... 25

(5) Rulings .......................................................................................................................... 29

(6) The Issues for Resolution .............................................................................................. 35

(7) Costs .............................................................................................................................. 39

(8) One Final Observation .................................................................................................. 40

PART III – THE FACTS ......................................................................................................... 42

(9) Sgt Galvin ..................................................................................................................... 42

(10) The Uncontroversial facts ........................................................................................... 44

(i) Introduction ................................................................................................................ 44

(ii) The Tragic Death of Ms Sheena Stewart ................................................................... 45

(iii) The Reference to GSOC ........................................................................................... 48

(iv) The GSOC Investigation: The Initial Steps .............................................................. 50

(v) The CCTV Footage .................................................................................................... 51

(vi) The Taking of the Garda Statements ....................................................................... 52

(vi) The Conflict ............................................................................................................. 54

(vii) The Interviews under Caution................................................................................. 56

(viii) After the Cautioned Interviews ............................................................................... 58

(ix) The Tragic Death of Sgt Galvin ............................................................................... 60

PART IV – Issues For Resolution ........................................................................................... 69

(11) The Approach .............................................................................................................. 69

(i) The Standard or Basis of Review............................................................................... 69

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(ii) The Scope of the Inquiry: ......................................................................................... 73

(iii) Preliminary: ............................................................................................................ 74

(12) The Issues ..................................................................................................................... 77

(i) The initial decision to designate an inquiry under s.98 of the 2005 Act which was

made on the 1st January, 2015 ........................................................................................ 77

(a) Submissions on behalf of the interested parties: .................................................... 77

(b) The Inquiry’s Findings: ......................................................................................... 80

(c) Summary of Conclusions and Recommendations: ............................................. 101

(ii) The Initial Stages of the GSOC Investigation ....................................................... 102

(a) Submissions on behalf of the interested parties: ................................................. 102

(b) The Inquiry’s findings: ....................................................................................... 107


(iii) The “extension” of the GSOC investigation and the decision to conduct cautioned

interviews: ..................................................................................................................... 122

(a) Submissions on behalf of the interested parties: ................................................. 122

(b) The Inquiry’s Findings: ....................................................................................... 125


(iv) The releasing of information concerning the status of the GSOC investigation ... 128

(a) Submissions of the parties: .................................................................................. 128


(c) Summary of Conclusions and Recommendations ............................................... 132

(v) Communications Generally ................................................................................... 133

(a) Submissions on behalf of the parties: .................................................................. 133



PART V ................................................................................................................................. 154

(13) Concluding Remarks ................................................................................................. 154

APPENDICES ....................................................................................................................... 155

Appendix 1 – Index to Booklet of Documents .................................................................. 156

Appendix 2 – Index to Booklet of Statements ................................................................... 157

Appendix 3 – 19-01-16 Provisional Ruling ....................................................................... 160

Appendix 4 – 19-01-16 Provisional Ruling ....................................................................... 163

Appendix 5 – 20-01-16 Final Ruling and Determination .................................................. 164

Appendix 6 – Second Supplemental Statement of Darren Wright .................................... 169

Appendix 7 – Correspondence from Mason Hayes & Curran Solicitors 04/02/16 ........... 175

Appendix 8 – “Operations Directive on the Use of Section 93” ....................................... 176

Appendix 9 – “Delegation of Powers in relation to Section 93” ....................................... 185

Appendix 10 – 29/01/16 Decision on Scope .................................................................... 186

Appendix 11 – 11-02-16 Reasons for Ruling .................................................................... 188

Appendix 12 – Correspondence from Mason Hayes & Curran Solicitors 26/02/16 ......... 189

Appendix 13 – Final Ruling of 18/04/16 ........................................................................... 190

Appendix 14 – General Guidelines on Payment of Legal Costs & Other Expenses ......... 200

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GLOSSARY OF TERMS AND ABBREVIATIONS

AIO Assistant Investigating Officer

Article 2 Article 2 of the European Convention on Human Rights

Chief Supt Chief Superintendent

Commissioner/s Commissioner/s of the Garda Síochána Ombudsman Commission

(unless otherwise stated)

D/Gda Detective Garda

DDI Deputy Director of Investigations

DI Director of Investigations

DPP Director of Public Prosecutions

DO Divisional Office

ECtHR European Court of Human Rights

ECHR European Convention on Human Rights

Gda Garda

Gearáin Literal translation "Complaints". Gearáin is the liaison system

between An Garda Síochána and GSOC for transmission of requests

for documents or materials in the course of an investigation.

GSOC Garda Síochána Ombudsman Commission

Insp Inspector

IO Investigating Officer

PULSE PULSE (Police Using Leading Systems Effectively) is a computer

system used by An Garda Síochána, which contains records in relation

to individual members of society and incidents.

Sgt Sergeant

SIO Senior Investigating Officer

Supt Superintendent

The Act / The 2005

Act

The Garda Síochána Act, 2005 (unless otherwise stated)

The Minister The Minister for Justice and Equality

The Protocol Memorandum of Understanding, Protocols and Agreement on

Operational Matters between The Garda Síochána Ombudsman

Commission and An Garda Síochána.

PART I - INTRODUCTION

https://en.wikipedia.org/wiki/Garda_S%C3%ADoch%C3%A1na



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(1) General Observations

1.1 Great tragedy does not always mean great wrong. But great tragedy creates an

imperative for thorough investigation.

1.2 The circumstances into which the Inquiry was required to delve, to a large extent,

started and ended with tragedy. In the early hours of New Year’s morning 2015 Ms Sheena

Stewart was killed in a road traffic accident. In the early hours of the 28th May of that year

the body of Sgt Michael Galvin was discovered in Ballyshannon garda station at

approximately 7.00am. . In the intervening period GSOC had commenced, conducted and,

to a very large extent, completed what turned out to be a criminal investigation into the

conduct of members of An Garda Síochána (including Sgt Galvin) in the period

immediately prior to the death of Ms Stewart. While the precise status of that investigation

at the time of Sgt Galvin’s death is a matter that requires to be explored in some detail, it

is fair to say that, so far as the carrying out of the investigation itself was concerned, same

had largely concluded on the basis of, at a minimum, a clear recommendation that there

should be no prosecution either of Sgt Galvin or any other of the gardaí concerned. At

least in a colloquial sense it can be said that the gardaí concerned had, in substance, been

cleared by the GSOC investigation.

1.3 The death of Ms Stewart was, indeed, a tragedy. That those tragic circumstances

required to be investigated can hardly be doubted although there is controversy, which will

be addressed in the course of this report, as to whether the form of criminal investigation

adopted by GSOC was appropriate in the circumstances. However, after a thorough

investigation, a clear decision was made by the investigating officers, supported by in-house

legal advice, that no prosecution should follow. There has been no suggestion, nor would

the Inquiry feel that there could be any valid suggestion, that the GSOC investigating

officers concerned were wrong in reaching the conclusions which they did. In that sense

the great tragedy of Ms Stewart’s death did lead to thorough investigation but also led to

the conclusion that, at least so far as An Garda Síochána were concerned, nothing

inappropriate had occurred. The Inquiry should add that it understands that the question

of whether proceedings may result from the road traffic accident itself remains alive and,

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for that reason, it would be most inappropriate for the Inquiry to make any comment on

those questions.

1.4 The death of Sgt Michael Galvin was indeed a further tragedy. It is hoped that this

report will demonstrate that the thorough investigation warranted as a result of that tragedy

has been conducted. It is important to record, however, that just as was the case with Ms

Sheena Stewart, the existence of a great tragedy does not, necessarily and in and of itself,

mean that there was great wrong. The purpose of any investigation of this type is to find

out whether that was so. It is important that inquiries such as this commence their work

with an open mind and do not assume that, because the circumstances being investigated

involve a great tragedy, there necessarily was commensurate wrongdoing. It is also

important that all who may have an interest in the work of an inquiry such as this recognise

that important principle. Adverse findings should be made if they are justified on the

evidence. The investigation should be thorough so as to ensure that all possible evidence

becomes available so as to form a judgment about whether adverse findings should be

made. But any adverse findings should only be those which can be justified on the evidence

and such findings should only be expressed in terms justified by the evidence. The Inquiry

would hope that it has kept those principles in mind in the conduct and conclusion of its

investigation. The Inquiry would also hope that all who may have an interest in those

conclusions will recognise the need to adhere to those principles.

1.5 On perhaps a more mundane level it should be recorded that this inquiry was the first

established under s.109 of the 2005 Act which provides for a judicial-type inquiry into the

conduct of designated GSOC officers arising out of the conduct by those officers of a

criminal investigation into members of An Garda Síochána. Some issues relating to the

law in respect of an investigation under that section will need to be addressed in the course

of this report. It should be recorded that, doubtless because this is the first inquiry of its

kind and that, therefore, no issues concerning the precise operation of the legislation have

been determined or debated before now, more legal issues arose than might have been the

case in the implementation of much used legislation. The Inquiry would wish to record

that it did not consider that any of the issues raised were put forward in anything close to

a frivolous or vexatious manner. Indeed, as will be apparent from certain aspects of this

report, the Inquiry was of the view that certain aspects of the legislation lacked clarity. This

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lack of clarity undoubtedly led to legitimate questions being raised as to the precise way in

which the legislation should operate and unquestionably added to the complexity and

length of the Inquiry’s investigation. While this inquiry has expressed its view on the legal

issues raised, it is worth recording that, unless and until any of those issues come to be

definitively determined by a court of competent jurisdiction, it would remain open to

another judge appointed to conduct a different inquiry under this legislation to reach a

different conclusion on any of those issues. The Inquiry is of the view that, now that there

has been experience in implementing this legislation, a review of the wording of certain

parts of the legislation would be welcome so that the issues which arose in this inquiry

could be put beyond doubt and would not, therefore, be likely to arise in the event of a

further inquiry under this legislation.

1.6 Finally, it would be somewhat naïve for the Inquiry to embark on a consideration of

the specific facts and issues which arise under its terms of reference without at least

mentioning what many might consider to be an “elephant in the room”. One would have

had to have lived in a media-free zone for the last decade or so not to be aware that there

have, from time to time, been tensions between GSOC and An Garda Síochána both at an

organisational, representative and individual level. It is beyond the scope of this inquiry to

address the causes of those tensions or to identify the extent to which they may have been

alleviated by measures adopted over the years. It would be fair to say that the general

impression created by the evidence tendered to this inquiry suggested a wide range of

differing attitudes to GSOC within An Garda Síochána. It is, of course, inevitable that

there will be tensions between any investigator and those being investigated. But some of

those members of An Garda Síochána who gave evidence expressed the view that GSOC

were simply doing their job and indicated that they understood, to a greater or lesser extent,

why this had to be so. On the other hand, it would be fair to say that some degree of

resentment and hostility was also apparent in the views of other witnesses. It must, of

course, be recognised that the tragic circumstances which led to the establishment of this

inquiry must have had an effect, and indeed an understandable effect, on the attitudes of

many of the colleagues of Sgt Galvin who clearly held him in such high esteem.

1.7 This inquiry will not solve all, or even many, of the remaining difficulties which

undoubtedly exist in relation to the investigation of issues relating to An Garda Síochána.

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But it is clearly very much in the public interest that there be an effective investigation

mechanism in place and it is also in the public interest that such mechanism work as well

as possible. One of the clear impressions which came over to this inquiry was that at least

part of the problem stems from a lack of proper understanding among members of An

Garda Síochána as to the way GSOC is required to and does carry out its role. It is outside

this inquiry’s remit to apportion blame for that state of affairs and it would, indeed, be

dangerous for this inquiry to attempt so to do given that its focus has been on a single

GSOC investigation albeit one which had such tragic consequences. However, the Inquiry

has sought to put forward some recommendations as to a process which, it might be hoped,

could lead to a greater understanding all round. As suggested earlier, it would be naïve to

believe that all tensions could be removed from any investigative process. But the Inquiry

has come to a strong impression that significant improvement is possible.

1.8 The primary purpose, however, of this inquiry was to bring clarity to the facts

surrounding the GSOC investigation arising out of the death of Sheena Stewart. The

Inquiry was required to do so in the context of assessing the conduct of GSOC designated

officers. It is hoped that this report will bring at least some such clarity and will allow a

measure of closure for all concerned although it must be recognised that the consequences

of tragic events are hard to put behind. But in addition to addressing the specifics of the

investigation concerned it is hoped that the recommendations of the Inquiry may be of

some assistance in helping to build confidence in what is undoubtedly a vital part of our

state’s structure being the mechanism by which our guards are themselves guarded.

(2) Preliminary Matters:

(i) Appearances:

Legal representatives appearing at the Inquiry:

Counsel for the Inquiry: Helen-Claire O’Hanlon BL and Sorcha Cristin Whelan BL

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For the designated officers of GSOC: Úna Ní Raifeartaigh SC, instructed by Edward

Gleeson and Laura Rattigan Solicitors of Mason Hayes & Curran Solicitors;

For An Garda Síochána: Rory Mulcahy SC and, Paul Carroll BL, instructed by Pat

Spillane Solicitor of the Chief State Solicitor’s Office;

For Collette Galvin: Claire Moran Solicitor of Cathal Flynn Solicitors;

For the extended Galvin family: Rosemary Mallon BL, instructed by Michael Hegarty

Solicitor of Smyth O’Brien Hegarty Solicitors.,

Stenography Services provided by Gwen Malone Stenography Company

(ii) Witnesses:

Witnesses who gave evidence before the Inquiry, in approximately chronological order,

were as follows:

Members / employees of An Garda Síochána: Supt Andrew Archbold, Sgt Stewart

Doyle, Supt Michael Finan, Insp Denis Joyce, Chief Supt Terry McGinn, Gda John

Clancy, Gda Aidan Mulvihill, Gda Gerry Mullaney, Supt Colm Nevin, Gda Brian Tuohy,

Gda Sean Rogers, Gda Yvonne Carolan, Darragh Phelan, Sgt Paul Wallace, Sgt Joe

Hannigan, Gda Kevin Garvin, Gda Louise Foy, Gda Paddy Battle, Gda Claire O’Hara,

Gda Helen Munnelly, D/Gda Chris O’Neill, Supt Louise Synott.

Legal Representatives: Michael Hegarty (Solicitor), Gerald O’Donnell (Solicitor), Gerry

McGovern (Solicitor)

Family members and personal friends of Sgt Michael Galvin: Colette Galvin, Damien

Hamill, Matt Feely, Geraldine Gill, John Gill, Helen Rutledge,

Members of GSOC: SIO Nick Harden, SIO Maurice Breen, IO Daniel Gallagher, DI

Ken Isaac, DDI Darren Wright, IO Pauline Byrne, SIO Jon Leeman, SIO Rody Butler,

SIO Johan Groenewald, SIO Garret Croke, Niamh McKeague (Legal Affairs), Michael

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O’Neill (Formerly Head of Legal Affairs), Lorna Lee (Head of Communications),

Commissioner Kieran Fitzgerald.

(iii) The Terms of Reference:

As set out in accordance with s. 109 of the 2005 Act, in the letter of request from the

Minister of for Justice and Equality and the Chief Justice, the terms of reference are as

follows:-

“An inquiry into the conduct of designated officers of the Garda Síochána

Ombudsman Commission in performing functions under section 98 or 99 of the

2005 Act in relation to the investigation by the Ombudsman Commission in the

matter referred to it by the Garda Commissioner on 1 January 2015 under section

102(1) of the 2005 Act, that matter being the contact which members of the Garda

Síochána had with Ms Sheena Stewart in the early hours of 1 January in

Ballyshannon, Co. Donegal, shortly prior to Ms Stewart's death in a road traffic

collision."

(iv) GSOC Personnel and the GSOC organisational structure:

2.1 The designated Officers of GSOC within the terms of reference of this Inquiry, namely

all those officers who played a role in the investigation into Garda contact with Ms Sheena

Stewart prior to her death in the fatal road traffic collision on the 1st of January 2015, are

as follows:

SIO Nick Harden

IO (now SIO) Maurice Breen

IO Daniel Gallagher

SIO Jon Leeman

IO (Now SIO) Rody Butler

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IO Pauline Byrne

SIO Johan Groenewald

SIO Garret Croke

DDI Darren Wright

DI Ken Isaac

2.2 The hierarchy and organisational structure within GSOC was explained by various

witnesses as follows:

2.3 An Assistant Investigating Officer is the lowest rank within the investigations unit.

Above that level is the rank of Investigating Officer and above that again is that of Senior

Investigating Officer. There are several GSOC offices in Ireland, with Headquarters on

Upper Abbey Street in Dublin 1. There is a further office in Cork, from where the team

covers the Munster region and in Longford which covers the Midlands and Western region.

2.4 An Investigating Officer or Assistant Investigating Officer is connected to, and is part

of, an investigation team. At the start of 2015, SIO Nick Harden and IO Maurice Breen

were based in the Cork office. IO Daniel Gallagher was working remotely, based in

Donegal and reporting to his line manager, SIO Leeman in the Dublin office. During the

course of the investigation IO Gallagher transferred to the Longford team and thereafter

reported to SIO Johan Groenewald who was based in the Longford office.

2.5 The senior ranks above that of SIO are the Deputy Director of Investigations and the

Director of Investigations. Over all of those ranks are the Commissioners of GSOC, being

at the relevant time, Commissioner Kieran Fitzgerald and Commissioner Carmel Foley.

The current Chair of GSOC, Ms Justice Mary Ellen Ring, was not in office at the time of

the events relevant to this inquiry.

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(3) Summaries:

(i) Summary Timeline:

3.1 The purpose of this summary is to set out a timeline of the key dates which are of

relevance to the remit of the Inquiry. A more detailed account of those facts which are not

in dispute is set out in Part III of the Report. Insofar as there are a limited number of facts

in relation to which there was conflicting evidence the same are dealt with in the course of

the Issues section of this Report (Part IV).

- 01/01/2015 (early hours): There is some garda interaction with Sheena Stewart

who later is killed in a road traffic accident. (“RTA”)

- 01/01/2015 (later): Supt Michael Finan attends at the scene of the fatal RTA and

refers the matter to GSOC in accordance with s.102 of the 2005 Act. SIO Nick

Harden (the SIO on call) makes a recommendation to DI Ken Isaac of GSOC to

designate an investigation under s.98 of the Act (a criminal investigation). DI Isaac

agrees and a s.98 investigation is commenced. Later in the day a meeting takes place

in Ballyshannon Garda Station between GSOC officers Harden and Breen and Insp

Denis Joyce. Sgt Gerard Mullaney is placed in charge of the RTA investigation.

- 2/1/15: A document request is given to Insp Joyce by the attending GSOC officers.

The s.98 investigation is transferred to IO Daniel Gallagher and IO Gallagher later

attends at Ballyshannon garda station and collects the CCTV from Insp Joyce.

- 7/1/15: Gda John Clancy makes a statement.

- 12/01/15: IO Gallagher views CCTV footage of the original incident and feels that

there is an inconsistency with what has been reported to him.

- 13/1/15: IO Gallagher makes a request under the Gearáin system for further

materials and receives a reply to the effect that no formal notification has been

provided to An Garda Síochána of the existence of a s.98 investigation.

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- 25/1/15: Sgt Galvin makes a statement.

- 26/1/15: IO Gallagher writes to Garda Internal Affairs, formally notifying the

existence of the s.98 investigation and identifying the three members under

investigation (being Sgt Doyle, Sgt Galvin and Gda Clancy).

- 2/2/15: IO Gallagher attends Ballyshannon Garda Station and receives a number

of documents per the document request of 2/01/15, including the statement from

Sgt Galvin.

- 12/2/15: SIO Leeman reviews the CCTV footage and he and IO Gallagher decide

that the accounts of Gda Clancy and Sgt Galvin need to be clarified after caution.

- 25-26/03/15: Several calls take place between IO Gallagher and Sgt Galvin in

relation to a cautioned interview. Sgt Galvin expresses shock and seeks information

as to the offence under investigation. IO Gallagher outlines that the offence is either

under s. 110 of the 2005 Act or that of perverting the course of justice contrary to

common law.

- 27/4/15: Gerald O’Donnell, solicitor acting for Sgt Galvin, meets with him and

advises that he will write to IO Gallagher. Several consultations and telephone

conversations between Sgt Galvin and his solicitors take place in the following

weeks.

- 28/4/15: A letter is sent from Smyth O’Brien Hegarty, solicitors for Sgt Galvin, to

IO Gallagher querying a lack of notification and seeking further information.

- 01/05/2015: Sgt Mullaney sends the completed RTA investigation report to the

Supt at Ballyshannon.

- 05/05/15: IO Gallagher responds to the letter from Smyth O’Brien Hegarty and

suggests 15th May 2015 for a cautioned interview of Sgt Galvin. This date does not

suit but in further correspondence an interview is arranged for 20th of May 2015.

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- 6/5/15: Gda John Clancy is interviewed by IO Gallagher and IO Butler in the

offices of his Solicitors, McGovern Walsh & Co, in Sligo.

- 14/5/15: Sgt Galvin takes the train to Dublin for a lengthy consultation with his

solicitors. He appears to be extremely concerned. It is agreed that a statement will

be prepared for submission to GSOC.

- 20/5/15: The day of the GSOC interview with Sgt Galvin. He and his wife drive

to Dublin. He goes alone to his solicitor’s office at 12.15pm and he and Gerald

O’Donnell walk together to the GSOC offices for the interview at 2pm. The

prepared statement is read out, Sgt Galvin indicates that he does not wish to answer

questions and the interview concludes very shortly thereafter.

- 21/5/15: IO Gallagher is of the view that a recommendation of no prosecution

should be made; having consulted SIO Groenewald and on his recommendation,

he submits a report to the Legal Affairs department of GSOC seeking their advice.

- 22/5/15: Sgt Galvin is referred by a peer supporter to the Garda Employee

Assistance Service.

- 25/5/15: Michael O’Neill, at the time Head of GSOC Legal Affairs, emails IO

Gallagher saying they will review and revert.

- 27/5/15: At 4.44pm Niamh McKeague, of GSOC Legal Affairs, emails IO

Gallagher concurring with his intended recommendation, to the effect that there

was insufficient evidence of any offence but suggests that a file should, nonetheless,

be sent to the DPP.

- 27/05/2015: Gda Brian Tuohy of the Garda Employee Assistance service visits

Sgt Galvin in the morning at his home in Manorhamilton. Later that day Sgt Galvin

takes up duty in Ballyshannon GS. He is meant to finish at 3.00am but tells others

he may finish early. At around midnight Sgt Galvin is last seen by Gda Clare O'Hara,

walking in the direction of the Sergeant's Office.

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- 28/5/15: At 00.50am Sgt Galvin phones Gda Paddy Battle. At 5.00am Colette

Galvin (the wife of Sg. Galvin) rings the station to say Sgt Galvin has not come

home. A search commences. A note is discovered addressed to Collette Galvin.

Sgt Galvin’s remains are found at approximately 7.00am in the locked detective’s

room. At 7.30am a s.102 referral in relation to the death of Sgt Galvin is made to

GSOC through Command and Control. The Garda Press Office is notified.

- 29/5/15: A proposed statement from GSOC is prepared by Lorna Lee, GSOC

Press Office, to be approved for publication, if necessary.

- 1/6/15: Journalist Greg Harkin emails Lorna Lee about the investigation.

Following this an approach is agreed within GSOC for notification of the Galvin

family and the media. DDI Wright is unsuccessful in attempts to contact the family

through An Garda Síochána. Lorna Lee speaks to Greg Harkin and provides some

information.

- 1/6/15: DDI Wright is informed by An Garda Síochána that the Galvin family have

been contacted by Greg Harkin who has told them the investigation had been

discontinued 10 days before Sgt Galvin’s death.

- 2/6/15: Greg Harkin’s article is published in the Irish Independent: “Garda who took

his own life didn’t know he had been cleared by GSOC”.

- 2/6/15: A statement is published by GSOC on the incident.

- 4/6/15: A second statement is published by GSOC, stating that they are bringing

their investigation into the death of Sgt Galvin to a close.

(ii) Summary of Conclusions:

3.2 There were few disputes as to the events which actually occurred. A brief timeline in

set out in the preceding section of this report. A more detailed account can be found in

Part III. The principal questions which the Inquiry was required to consider and on which

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the Inquiry was required to reach conclusions were, therefore, in the main concerned not

so much with what actually happened but whether what happened was appropriate.

3.3 In that context the first set of conclusions relate to the circumstances in which it was

decided by GSOC to instigate a criminal investigation into garda contact with the late Ms

Sheena Stewart prior to her death. That question brought into focus issues concerning the

legal basis on which it is appropriate generally for GSOC to instigate a criminal inquiry

together with issues concerning whether the commencement of such an inquiry was

justified in the circumstances of this case.

3.4 In that regard the Inquiry has concluded that the 2005 Act lacks clarity as to the

circumstances in which a criminal investigation under s.98 can properly be commenced by

GSOC. Given that lack of clarity it appears to the Inquiry that the best interpretation

which can be placed on the relevant provisions is that, to use a double negative required

by the legislation itself, a criminal investigation can be commenced when it does not appear

that the circumstances do not appear to constitute a criminal offence. Nonetheless the

Inquiry has concluded that it is not necessary that there be any evidence of potential

criminal action present before such an investigation can be commenced.

3.5 In addition the Inquiry has concluded that it is necessary, where a matter arising out of

the death or serious injury of a person after garda contact is referred to GSOC by An Garda

Síochána in accordance with s.102 of the 2005 Act, that GSOC must first conduct a

sufficiently thorough examination of the circumstances to enable a proper conclusion to

be reached as to whether the threshold referred to is met.

3.6 The Inquiry has also concluded that GSOC designated officers generally appear to

have allowed their perception of their obligation to conduct an inquiry consistent with

Article 2 of the ECHR to colour their view as to whether it is appropriate, in particular

circumstances, to conduct a criminal investigation and that this consideration also applied

to the facts of this case.

3.7 In relation to the designation of the investigation in this case as a criminal investigation

it is necessary to consider the possible offence of misconduct in public office as that was

the only possible offence considered by the GSOC officers concerned. While accepting

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that the offence in question has never been the subject of a prosecution in Ireland, the

Inquiry is of the view that it was not, in and of itself, inappropriate to commence a criminal

investigation into such a possible offence. The Inquiry had regard to the fact that the DPP

had indicated to GSOC, at an earlier stage, that a prosecution for such an offence would

be considered in appropriate circumstances on the basis of the likelihood that an offence,

similar to that which is recognised in the common law of the United Kingdom, would be

recognised in this jurisdiction.

3.8 However, the Inquiry also noted that the equivalent offence in the United Kingdom

required “wilful and significant” misconduct. In the circumstances of this case, the Inquiry

was not satisfied that, as of the time when the designation of an investigation into a criminal

offence occurred (which was within 30 minutes after the circumstances were first intimated

to GSOC), there was available sufficient information to warrant considering the possibility

of the sort of wilful neglect which would be necessary to constitute the offence of

misconduct in public office if such an offence forms part of the law of Ireland. In summary

the Inquiry has concluded that it must have been the case that, at the relevant time, the

circumstances then known did not appear to constitute a criminal offence.

3.9 On that basis the Inquiry has concluded that the decision, at that time, to instigate a

criminal investigation was mistaken. However, the Inquiry also has found that the decision

was taken bona fide and, in the light of the lack of clarity which is to be found in the

legislation itself, the Inquiry has come to the view that it must also conclude that the

decisions respectively to recommend and designate the investigation as a criminal

investigation, while mistaken, would not justify any action being taken against the

individuals concerned.

3.10 Finally, the Inquiry notes that, while it views the decision to instigate a criminal

investigation at the time when that decision was taken as having been mistaken, this should

not be taken to mean that the Inquiry feels that no criminal investigation at all could

properly have been instigated when more information became available.

3.11 As soon as the GSOC investigation commenced, a decision was made at a meeting in

Ballyshannon garda station to leave the taking of statements from the three gardaí who had

had relevant contact with Ms Stewart (Sgt Doyle, Sgt Galvin and Gda Clancy) to the gardaí

17

themselves, with the collection of those statements being left under the control of Insp

Joyce. There were issues as to whether that methodology was appropriate including the

question of whether, given that a criminal investigation was in being and that the three

gardaí concerned had been identified as being the subject of the investigation in question,

it was appropriate to procure uncautioned statements. In addition there were issues as to

precisely what level of information was given either to Insp Joyce or passed on to the three

gardaí concerned as to the status of the GSOC investigation and the nature of the

statements which the three gardaí concerned were required to make including the purpose

for which those statements might be used.

3.12 In that regard the Inquiry has found that it is difficult to express a definitive view on

a conflict of evidence between GSOC officers (SIO Harden and IO Breen) and An Garda

Síochána (Insp Joyce) as to precisely what was said at a meeting in Ballyshannon garda

station on the 1st January concerning whether a criminal investigation under s.98 of the

2005 Act was in being. The Inquiry accepts that the GSOC officers concerned attempted

to communicate the fact that there was such a criminal inquiry in being and genuinely

believed that they properly communicated that fact to Insp Joyce. However, the Inquiry

also accepts that Insp Joyce did not have that fact communicated to him in a way which he

clearly understood and that he was, therefore, not actually aware, as a result of the meeting

in question, that a criminal investigation was in being. That lack of clear communication

was one of the factors (but not by any means the only factor) which led to the fact that the

three members of An Garda Síochána who had been identified as being the subject of the

criminal investigation (Sgt Doyle, Sgt Galvin and Gda Clancy) were not informed of the

fact that there was a criminal investigation and that they were the subject of it.

3.13 The Inquiry has noted, however, the agreement of all those who were present at the

meeting of the 1st January to the effect that it was accepted that statements from the three

gardaí concerned would be obtained in which those gardaí would be required to “justify”

their conduct in the context of their contact with the late Ms Sheena Stewart prior to her

death. Those statements were to be taken in conjunction with the taking of statements of

the gardaí concerned in the context of the preparation of a file in relation to a possible

criminal prosecution under the Road Traffic Acts. It was also clear at the meeting in

18

question that the relevant statements would be made available to GSOC for the purposes

of its investigation.

3.14 The Inquiry has concluded that there was nothing wrong, in and of itself, in GSOC

using that method for obtaining initial statements from the gardaí in question and that there

was nothing wrong, in and of itself, in such statements being requested without the

members concerned being cautioned. However, the Inquiry has concluded that it was

wrong that those members were required to submit statements to GSOC without the

members concerned having been informed of the existence of a criminal investigation and

of the fact that they were the subject of the criminal investigation concerned.

3.15 The Inquiry has also concluded that, at the time when the three gardaí concerned

made their respective statements, it had not been made sufficiently clear to those members

that the statements which they were to make were, at least in part, for GSOC purposes. In

that regard, whatever about the lack of communication which occurred at the meeting of

the 1st January referred to above, it is clear that the GSOC officers concerned at that

meeting reached an agreement that statements were to be taken from the three members

at least in part for purposes of the GSOC investigation. The fact that that aspect of the

agreement was not clearly communicated to the members concerned must be attributed to

a failing of adequate internal communication on the part of An Garda Síochána.

3.16 Thereafter the GSOC investigation continued in what would appear to be a relatively

normal fashion save for the fact, to which it will be necessary to turn shortly, that, quite

extraordinarily, the three gardaí concerned were not made aware that there was a criminal

investigation in being and, in particular, that they were the subject of that investigation.

3.17 The next major development was the extension of the GSOC investigation into one

involving possible offences concerning making false and misleading statements or

perverting the course of justice. Issues arose concerning whether the decision to extend

the Inquiry in that regard was justified. A closely connected question of whether, in the

light of that extension, it was appropriate to conduct cautioned interviews of both Sgt

Galvin and Gda Clancy also arose.

19

3.18 In that context the Inquiry is satisfied that the decision to extend the Inquiry, taken

on the 12th February, to one involving possible offences of making false and misleading

statements or perverting the course of justice was a decision which was reasonable in the

light of the information available at that time. Until a satisfactory explanation was given

for the discrepancy between the statements made by Sgt Galvin and Gda Clancy, on the

one hand, and CCTV footage, on the other, there was a realistic possibility that a conclusion

might be reached that the statements were designed to deliberately downplay the extent to

which it might be said the members concerned ought to have had a greater level of concern

for Ms Stewart’s safety.

3.19 It should be noted that satisfactory explanations were ultimately given but that does

not, in the Inquiry’s view, change the circumstances which prevailed at the time when the

decision to extend the investigation was taken. For like reasons the Inquiry is satisfied that

it was prudent, in all the circumstances, for the interviews in question to be conducted

under caution.

3.20 It is next necessary to turn to those cautioned interviews. For reasons set out in more

detail in the course of the report, an issue was originally identified concerning whether

there might have been anything inappropriate about the manner in which those cautioned

interviews were undertaken. However, no materials or evidence came to light to suggest

that the relevant interviews were conducted in anything other than a professional and

appropriate fashion. The findings of the Inquiry in that regard can be found in more detail

in Part IV of the report.

3.21 Sgt Galvin was the second member to be interviewed under caution. Soon after that

cautioned interview two developments or events occurred. First, the GSOC officer

principally involved in the investigation came to the conclusion that there was no basis for

recommending a criminal prosecution in respect of either Sgt Galvin or Gda Clancy.

Having consulted his superior officer and on the recommendation of that superior officer

the matter was referred for internal legal advice. At 4.44pm on the afternoon of the 27th

May GSOC Legal Affairs sent an email concurring with the recommendation as to no

prosecution but suggesting that a file should, nonetheless, be sent to the DPP. The second

and tragic event which occured was that, in the early hours of the following morning, Sgt

20

Galvin took his own life. Given the publicity which subsequently attached to the status of

the GSOC investigation at the time of Sgt Galvin’s death, the precise sequence of events

and the status of that investigation at various times are analysed in Part III of the report.

3.22 The remaining specific issues which arose for the Inquiry’s consideration related to

the circumstances in which information concerning the status of the investigation by

GSOC was released to the media in the period immediately after Sgt Galvin’s death. In

that context it needs to be emphasised that the scope of an inquiry under s.109 of the

2005 Act is limited to considering the conduct of GSOC designated officers and does not,

therefore, extend as such to a consideration of the conduct of the GSOC Commissioners

or any other staff of GSOC who are not designated officers.

3.23 On that basis the Inquiry notes the limited nature of its remit under this heading. The

Inquiry is only entitled to consider the conduct of designated officers. Therefore, the

Inquiry is concerned to determine whether any GSOC designated officer might be said to

have been at fault in the way in which information concerning the status of the investigation

into Sgt Galvin arising out of the death of Ms Sheena Stewart was given to the media and,

in particular, the fact that that information was given prior to the Galvin family being

briefed.

3.24 The Inquiry is satisfied that it was reasonable, in all the circumstances, for GSOC to

give information to the media but concludes that it would have been “significantly

preferable” if greater coordination had taken place to at least maximise the likelihood that

information was not imparted to the media before there had been sufficient contact with

the Galvin family. The Inquiry has noted the extreme distress which this sequence of

events caused for the family, friends and colleagues of Sgt Galvin. The Inquiry is also of

the view that the sequence of events in question has contributed to some of the

misinformation which gained currency surrounding the GSOC investigation.

3.25 The Inquiry has concluded that, while acknowledging that more could and should

have been done to at least ensure that the Galvin family were properly briefed in advance

of any media information being disseminated, it would in all the circumstances not be

appropriate to level specific personal criticism at any GSOC designated officers in that

regard. The Inquiry has reached that view not least because of the extremely charged

21

circumstances then prevailing. The Inquiry also notes that, while the specific findings

under this heading relate only to relevant GSOC designated officers, it is appropriate to

record, lest by not so doing an inference to the contrary might be drawn, that it does not

consider that Ms Lee of the GSOC press office could be the subject of any legitimate

adverse findings either.

3.26 In the course of considering both the sequence of events and the issues which arose,

the Inquiry was struck by the frequent lack of information or misunderstanding which

became apparent.

3.27 In that context the Inquiry notes that much of the evidence betrayed a significant lack

of information and misunderstanding on the part of many gardaí as to the precise role,

remit and practice of GSOC. The Inquiry notes that some of the lack of understanding

which arose in the context of this case is specific to the circumstances investigated. The

lack of adequate communication to An Garda Síochána at the meeting in Ballyshannon on

the 1st January is a case in point. In particular the fact that an email, which was intended

to lead to the formal communication to the three gardaí concerned that they were the

subject of a criminal investigation, was inadvertently deleted in the divisional office of An

Garda Síochána at Letterkenny was highly unfortunate. These factors combined to lead to

the extraordinary situation that neither Sgt Galvin nor Gda Clancy knew that they were the

subject of a criminal investigation until they were contacted (almost three months after the

investigation commenced) about a requirement that they present themselves for a

cautioned interview. Even more extraordinarily Sgt Doyle was unaware that he had been

the subject of investigation until he was told, after the death of Sgt Galvin, that no action

was to be taken in respect of him.

3.28 The question of lack of communication or adequate information is one of the matters

which is the subject of recommendation by the Inquiry as will be seen from the next section

of this report.

22

(iii) Summary of Recommendations

3.29 The Inquiry is mindful of the fact that its focus was on a single case and that there

may, therefore, be a danger in seeking reach overbroad conclusions and thus make

overbroad recommendations based on the conduct of an inquiry into a single case.

Notwithstanding that, the Inquiry feels, for reasons which are set out in more detail in the

course of the report, that there are a number of areas in respect of which it should make

recommendations.

3.30 The first set of recommendations contained in the report relate to the legislation itself.

As the Inquiry notes in the report a number of legal issues concerning the proper scope of

an inquiry under s.109 of the 2005 Act arose in the course of the conduct of the inquiry.

While the Inquiry has expressed its views on the issues raised, the Inquiry recommends

that those aspects of the legislation identified as having given rise to those issues should be

reviewed for the purposes of putting the issues concerned beyond doubt in the event that

there may be a further inquiry of this type. While it is inevitable that such issues may arise

on the first occasion when a new piece of legislation is operated, it seems to the Inquiry,

from its experience of having conducted this particular inquiry, that the work of any future

inquiry will be made easier if the issues of debate identified were clarified by amendments

to the legislation in question. In particular the question of whether it is permissible for a

s.109 inquiry to consider a decision to designate an investigation by GSOC as one to be

conducted as a criminal investigation under s.98 of the Act should be placed beyond doubt.

In addition further consideration might be given to clarifying with greater precision the

matters which should be addressed in the report of an inquiry.

3.31 In addition, the Inquiry has set out, in Part IV, a detailed analysis of the legislation

insofar as it governs a decision to designate an investigation by GSOC as a criminal

investigation (under s.98 of the Act) or a disciplinary investigation (under s.95 of the Act).

For the reasons explored in detail the Inquiry considers that aspect of the legislation to be

unclear and particularly so in the context of a case which comes to GSOC on a referral by

An Garda Síochána under s.102 of the Act as opposed to as result of a complaint by a

member of the public. As noted in the report, the Inquiry came to the view that this lack

of clarity in the legislation was at least in part responsible for some of the issues which

23

arose concerning the instigation of a criminal investigation on the facts of this case. The

Inquiry recommends that the legislation be reviewed to bring greater clarity to that

important question.

3.32 Moving on from the legislation itself the Inquiry also came to the view that some of

the general practices concerning the conduct of GSOC investigations required

reconsideration. In that context the Inquiry noted a lack of clarity amongst GSOC

personnel as to the precise circumstances in which they should inform members of An

Garda Síochána about the progress of a criminal investigation in accordance with the

obligation to inform contained in s.103 of the 2005 Act. While recognising that a final

decision on the imparting of information must necessarily be an operational decision taken

by those on the ground, the Inquiry recommends that more detailed guidance be given by

GSOC to its designated officers in that regard.

3.33 The Inquiry also recommends that much more detailed information be made available

to members of An Garda Síochána, in a clear form likely to be read and understood, about

the way in which GSOC investigations are carried out. It is in particular suggested that

such information should be specifically imparted directly to any member of An Garda

Síochána who becomes the subject of a criminal investigation.

3.34 In addition, it is suggested that consideration be given to changing the current practice

whereby the existence of a GSOC criminal investigation is notified by An Garda Síochána

to the member concerned. It is suggested that this notification should be carried out by

GSOC in conjunction, if that is considered appropriate, with an appropriate line manager

within An Garda Síochána.

3.35 Finally, the Inquiry has tentatively suggested that GSOC might give consideration to

whether it is appropriate to apply its policy, of always referring a file to the DPP at the

conclusion of a GSOC criminal investigation under s.98 involving a death, in all cases. The

Inquiry feels that some consideration should be given to considering whether there may

not be some cases where no or so little evidence or materials are turned up in the course

of a GSOC investigation of that type that a referral of a file to the DPP might be considered

neither necessary nor truly justified.

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PART II – THE PROCESS

(4) The Overall Process:

4.1 On the establishment of the Inquiry, an immediate initial request was made to all parties

who appeared to have an interest in the events which are the subject of the Inquiry to

provide any documentation or other materials which might be considered relevant to the

Inquiry’s terms of reference. That request was made on an informal basis but a significant

volume of material was provided by the offices of GSOC, An Garda Síochána, the

Department of Justice and the Solicitors’ firm Smyth O’Brien Hegarty (who had

represented Sgt Galvin during the investigation and who represented the extended Galvin

family at the Inquiry).

4.2 Formal Affidavits of Discovery were provided subsequently on behalf of those parties

in respect of all documents and materials. In the course of the conduct of the Inquiry

certain additional materials were requested from interested parties either because, in the

light of developments at the Inquiry, those materials appeared to the Inquiry itself to be

relevant or because other interested parties persuaded the Inquiry that the materials

concerned should be made available for consideration. Finally, towards the end of the

Inquiry, after all evidence and submissions had been heard, a further piece of

documentation was submitted by Gerald O’Donnell, solicitor with Smyth O’Brien Hegarty.

He submitted a supplemental statement, together with a page from his notebook, which

he had belatedly discovered, and which contained reference to a telephone conversation

with Sgt Galvin. This supplemental statement and extract was distributed to the parties on

the 7th of April and correspondence as to the content of same was considered by the

Inquiry. The Inquiry wrote to the parties on the18th of April 2016 indicating that the

additional materials had been circulated simply on the basis that it was felt appropriate to

disclose those materials to interested parties in the event that any party felt it appropriate

to make any submissions deriving therefrom but that the Inquiry did not consider that the

receipt of those materials would justify reopening any issue (this being a reference to the

issue of the manner of the conduct of the interviews under caution with Sgt Galvin and

Gda Clancy).

26

4.3 The Inquiry has not at any stage had any reason to believe that the disclosure made by

all relevant parties was other than satisfactory.

4.4 The documentation which was initially received was reviewed, categorised and logged

in a database, detailing, amongst other things, each individual document’s description,

provenance and relevance. When the documentary record had been assembled and

assessed, further communication was made with all aforementioned interested parties and

also the extended Galvin family setting out what appeared, at that stage, to be the principal

facts which were not in dispute and specifying the issues which seemed to the Inquiry to

potentially require further investigation. It was made clear that the identification of facts

and issues was provisional in nature and would be kept under review as the Inquiry’s work

progressed. It was also made clear that the Inquiry would entertain representations from

any parties in respect of the issues thus provisionally identified.

4.5 Interested parties were invited to identify any witnesses whom they considered might

have relevant evidence to give to the Inquiry. Some additional potential witnesses were

identified by the Inquiry itself from assessment of the documentary record. The Inquiry

requested formal written statements from each potential witness by analogy with the

powers of the commercial lists of the High Court in that regard. All requested written

statements were provided and, again, the Inquiry has no reason to believe that compliance

with its directions in that regard was other than satisfactory.

4.6 Composite booklets of relevant documents were then compiled, indexed and circulated

to the interested parties. The Index of documents circulated is appended hereto1. A

complete set of statements as provided to the Inquiry was also circulated to the parties.

The Index of statements circulated is B (including such supplemental statements sought or

received during the course of the Inquiry).also appended hereto2.

4.7 At this stage the parties were notified that the taking of evidence would be conducted

in two phases. The first phase was designed to record the evidence of those witnesses who

had been identified as potentially having information material to the Inquiry’s remit

1 Appendix 1 2 Appendix 2

27

together with the accounts of any further witnesses who might be identified in the course

of hearing evidence during Phase I. It was made clear that a second phase would follow at

which an opportunity would be given to all interested parties to cross-examine any

witnesses or identify further evidence which they wished to tender subject only to satisfying

the Inquiry that the cross-examination concerned or additional evidence proffered was

relevant to the Inquiry’s remit. On that basis Phase I of the taking of evidence commenced.

4.8 Witnesses were asked to confirm on oath the contents of their written statements and

to answer questions by counsel to the Inquiry for the purpose of clarifying or elaborating

on their statements. During this phase further information was provided which seemed to

the Inquiry to be relevant to its remit. The Inquiry heard evidence from each individual

who had been identified by it or by any of the interested parties as having potentially

relevant evidence to give. As Phase I progressed, the Inquiry identified several further

witnesses from whom it wished to, and did, obtain evidence. All interested parties were

permitted to have representatives present during the hearing of all of the evidence during

Phase I.

4.9 Following the completion of evidence taking in that phase, a brief procedural hearing

was held where it was indicated that the Inquiry would circulate an updated version of an

“Issues” document. This would outline the various issues which appeared to the Inquiry

to remain for consideration on foot of evidence which had been heard in Phase I. The

various parties were invited to make submissions as to further issues of controversy, factual

matters or witnesses who it was felt should be included in Phase II. These submissions

were considered and further hearings were then scheduled for Phase II.

4.10 Phase II then entailed the hearing of further evidence, including cross examination

by legal representatives for the interested parties of those witnesses who had been recalled.

The focus of that cross examination and/or re-examination was to refine and clarify those

matters of interest to the Inquiry and to assist in resolving possible conflicts of evidence

which had emerged from the testimony given in Phase I. It was also made clear that it

would be incumbent on any party who wished to reserve the possibility of submitting that

criticism should be directed to any individual to put the basis of such criticism to the

witnesses concerned, so as to give that witness the opportunity to answer same.

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4.11 A significant amount of work had at that stage been done by all parties in identifying

factual and other matters which were not the subject of controversy so that the areas which

could require to be finalised after the oral submissions could be confined to those issues

of fact or opinion which were controversial. The identified issues which were addressed

in Phase II and in legal submissions are as set out hereunder in Part IV “Issues for

Resolution”.

4.12 During the course of Phase II, further documents were sought by the legal

representatives of interested parties. A request was made on behalf of the designated

officers of GSOC for copies of all documents relating to this Inquiry which had been

authored by particular members of An Garda Síochána. These were extracted from the

documents in the possession of the Inquiry and distributed to the parties. Confirmation

was provided by An Garda Síochána that there were no further documents in their power,

possession or procurement which met the criteria of documents sought.

4.13 Requests were made on behalf of the extended Galvin family for certain protocols

which were in the possession of GSOC. That request and the decisions made in respect

of same, were dealt with by way of a preliminary ruling, oral submissions, and a final ruling.

4.14 After the Phase II evidence had been completed and prior to legal submissions being

made, the Inquiry considered an issue which had been raised by representatives of the

designated officers of GSOC, relating to the remit of a s.109 Inquiry in respect of certain

aspects of a s.98 investigation, (including the decision to designate it as such).

The Inquiry gave a further written ruling on this question on the 11th of February 2016.

(See ‘Rulings’ section below).

4.15 Following on from those preliminary rulings, the interested parties, through their legal

representatives, provided written legal submissions addressing the Issues which had been

identified. The written submissions were considered by the Inquiry and were circulated to

the other interested parties in advance of the final oral hearing. The Inquiry concluded

with a day of oral legal submissions at which each party was afforded the opportunity to

address issues raised in the legal submissions of other parties. The final right of rejoinder

was given to the legal representatives of the designated officers of GSOC. One final issue

arose at that oral hearing being the suggestion made by Counsel for GSOC that a draft

29

report be circulated, at least in part, in advance. That question was the subject of a separate

ruling, which is dealt with in the rulings section of this report.

(5) Rulings

5.1 As noted previously, the Inquiry was called on to make a number of rulings in the

course of its investigation. Some of those rulings arose out of oral applications made on

behalf of interested parties in the course of hearings conducted by the Inquiry. Others

arose from correspondence. Not least because this is the first inquiry conducted under

s.109 of the 2005 Act, it is felt appropriate to set out in some detail the applications which

were made and the rulings given by the Inquiry on same.

5.2 An oral ruling was given on the 11/11/15 in relation to the material found on Sgt

Galvin’s phone. The context of the application which led to that ruling was that, as noted

earlier in this Report, all parties, including An Garda Síochána, had made discovery of all

documents (including electronic documents) within their possession, power and

procurement which might be relevant to the remit of the Inquiry. However, Sgt Galvin’s

mobile phone was not in the possession of An Garda Síochána at the time when discovery

was made. That mobile phone later came into the possession of An Garda Siochána and,

quite properly, Counsel drew to the Inquiry’s attention the fact that, while An Garda

Síochána were not convinced that any of the material found on the phone in question was

relevant to the Inquiry’s remit, it was considered appropriate to supply details of certain of

the materials found to the Inquiry so that the Inquiry might, itself, consider the relevance

of same. Due to the sensitive nature of the relevant material it is not proposed to set out

same in any detail in this Report. Suffice it to say that the Inquiry did not consider that it

was necessary to hear any further evidence concerning the material concerned but did feel

it appropriate to notify all interested parties of a very brief description of the content which,

it was considered, might be relevant, at least in a very indirect way, to the matters which

the Inquiry was required to consider.

5.3 An oral ruling was made on the 24/11/2015 following oral application made by

representatives of the extended Galvin family in relation to the cross-examination of

30

GSOC Commissioner Kieran Fitzgerald. Counsel for the extended Galvin family put

forward three matters on which it was sought to cross-examine Commissioner Fitzgerald.

The background to that application was the fact, as was accepted by all parties, that s.109

of the 2005 Act confines the remit of a judge appointed to conduct an inquiry under that

section to inquiring into to the conduct of designated officers of GSOC. It is clear,

therefore, that an inquiry under s.109 cannot involve, at least directly, any investigation of

the conduct of the Commissioners themselves, for those Commissioners are not

designated officers and their conduct is not, therefore, properly the subject of the

investigation. On the other hand, it is clear that, in order to fully and properly investigate

the conduct of designated officers, it may be necessary to consider the actions of the

Commissioners themselves, insofar as those actions may impact on the conduct of

designated officers. Against that background counsel for GSOC was anxious that the

proper parameters of the cross-examination of Commissioner Fitzgerald should be

delineated in advance. Equally, Counsel for the extended Galvin family sought to identify

specific matters on which it was proposed to cross-examine Commissioner Fitzgerald

which matters were, it was argued, properly within the remit of the Inquiry.

5.4 The first matter thus put forward concerned the interaction between Commissioner

Fitzgerald and the various designated officers whose conduct was within the Terms of

Reference. There was not any dispute between the parties in relation to that aspect of the

matter and cross-examination in that regard was permitted.

5.5 The second set of issues concerned proposed cross-examination in relation to

protocols and statutory provisions and in particular Commissioner Fitzgerald's

understanding of those matters. It was ruled that some cross-examination in that regard

ought to be allowed and was appropriate, but it was made clear that the issue which was

relevant to the Inquiry was the understanding within GSOC, at the relevant time, of what

the appropriate practice should be in the light of the relevant legislation and of agreed

protocols. This was found to have potential to impact on matters within the Inquiry's remit

and, therefore, cross-examination was permitted, provided that it was linked in an

appropriate way with the understanding of such matters within GSOC generally insofar as

that understanding might impact on the actions taken by designated officers. It was

31

reiterated that evidence to the Inquiry was only relevant if it had some potential to impact

on the assessment of the conduct of designated officers.

5.6 In relation to the third matter, Counsel for the extended Galvin family drew attention

to the fact that a radio interview given by Commissioner Fitzgerald in the immediate

aftermath of the death of Sergeant Galvin did suggest that some form of internal review

had been carried out as a result of which the view had been taken that the interaction

between GSOC and its officials, on the one hand, and Sergeant Galvin, on the other hand,

had been appropriate. The Inquiry was mindful of the point made by Counsel on behalf of

GSOC that the views which Commissioner Fitzgerald might now have or might be

required to have in the future on such issues were not relevant and were not matters about

which he should be asked, particularly because the Commission may have a role in

considering the Report of the Inquiry and taking whatever action might be considered

appropriate arising out of it. Therefore, it was ruled not to be appropriate to enquire into

Commissioner Fitzgerald's current view in the light of the information which was now

available. However, it was held that it would be appropriate to ascertain some detail about

what was considered at the relevant time, on the basis of the information which was then

available to the Commissioner. This was held to be without prejudice to any view which

the Commissioner might subsequently have formed, or might form in the future, in the

light of developments since then, the evidence heard at the Inquiry and whatever

recommendations or findings the Inquiry might make. Thus cross-examination under those

three headings, subject to the above limitations, was permitted.

5.7 A request was made by letter of the 9th of December 2015 on behalf of the extended

Galvin family for certain protocols, procedures and guidelines which were in the possession

of GSOC. Most of those documents were provided save that an objection was made to the

production of two of the protocols sought, being a Protocol in relation to s.95 disciplinary

investigations and a Policy on the operation of s.88(2)(b). The Inquiry had sight of the

documents in question and considered submissions by the parties in that regard. The

Inquiry made a preliminary ruling on the 19th of January 2016 in respect of the provision

of a redacted copy of the s.95 Protocol and directed that the s.88(2)(b) policy document

would not be required to be disclosed as it was not directly relevant. It should be noted

that, in making a preliminary ruling in that regard, the Inquiry followed what became its

32

standard practice of furnishing preliminary or provisional rulings in respect of requests

made in writing. It was made clear, when furnishing such preliminary rulings, that the

Inquiry would entertain any submissions on the part of interested parties which sought to

reverse or amend the ruling in question. In that context it should be noted that no such

request arose in respect of the preliminary ruling made in respect of the request by letter

of the 9th December, 2015, and that ruling, thus, became final3.

5.8 A further request was made by letter of the 8th of January 2016 on behalf of the extended

Galvin family for materials which had appeared briefly on the GSOC website and ancillary

documents. The Inquiry made a preliminary ruling on the 19th of January 2016 to the effect

that those materials would not be required to be disclosed as they were not considered

relevant4.The Inquiry subsequently heard oral submissions on this issue and made a final

Ruling which was disseminated on the 20th of January 2016 to the effect that the materials

were outside the remit of the terms of reference of the Inquiry5. However, the Inquiry

directed that a further statement of evidence be provided to give further clarification in

respect of a “Guidance” document. This was subsequently dealt with in a supplemental

statement from DDI Darren Wright6. A separate issue requiring clarification was also

raised by the Inquiry at this time, being the circumstances in which there could be

discontinuance of an investigation by GSOC and the question of the delegation of that

discontinuance function from the Commissioners. An additional direction was given that

clarification be provided by GSOC which addressed this issue.

5.9 That clarification was provided by email on the 4th of February 20167. In addition, an

“Operations Directive on the Use of Section 93”8 and a “Delegation of Powers in relation

to Section 93”9 documents were furnished to the Inquiry by Solicitors for the designated

officers of GSOC.

3 Appendix 3 4 Appendix 4 5 Appendix 5 6 Appendix 6 7 Appendix 7 8 Appendix 8 9 Appendix 9

33

5.10 An oral Ruling was made on the 19th January, 2016, following cross-examination of

Sgt Doyle by Counsel for GSOC. Counsel for An Garda Síochána objected to the level of

focus on Sgt Doyle’s actions towards Ms Stewart prior to her death and any similar

potential future cross-examinations of the other member who had been under

investigation; that being Garda Clancy. It was submitted that their actions were not the

subject of the Inquiry and formed no part of the Inquiry’s remit. The Inquiry indicated

that reasonable latitude would be allowed but noted that there was no suggestion of any

wrongdoing on the part of any members of the Gardaí and that care ought to be exercised

to ensure that this was reflected in the questioning. It was further indicated that that there

must be at least some potential connection between events being discussed in cross-

examination and an effect on what GSOC did or decided thereafter before such matters

could be relevant. Ultimately it was decided that the matter would be dealt with on a case-

by-case basis with the afore-mentioned provisos.

5.11 After the Phase II evidence had been completed and prior to legal submissions being

made, the Inquiry considered an issue which had been raised by representatives of the

designated officers of GSOC, relating to the remit of a s.109 Inquiry in respect of certain

aspects of a s.98 investigation, (including the decision to designate it as such). The Inquiry

distributed a provisional Ruling by email on the 29th of January 201610 and received further

submissions from the parties on that issue. The Inquiry made a final Ruling and set out

detailed written reasons on the 11th of February 201611, in advance of several final legal

submissions being made by representatives of the parties.

5.12 On the final day of hearings of the Inquiry, the 12/02/2016, a submission was made

by Counsel for the designated officers of GSOC in respect of advance sight of the draft

report (or relevant parts thereof) prior to finalisation. Counsel also sought leave to make

a written submission in support of that application. The Inquiry ruled that a written

submission would be considered. Mason Hayes & Curran, solicitors for the designated

officers of GSOC, forwarded a written submission on the 26/02/16 in relation to the draft

of the report and requested to have sight of same in advance of it being furnished to the


34

Minister. The request on behalf of the designated officers specified that the Inquiry might

furnish to each of them any portion of the draft report that dealt with his or her conduct,

prior to the finalisation of the Report, so as to enable the relevant persons to make any

submissions they deemed appropriate prior to such finalisation. It was noted by those legal

representatives that no such procedure was explicitly provided for in s. 109 of the 2005

Act, but relevant case law was referred to and reference was also made by analogy to s.32

of the Commissions of Investigation Act, 2004. In a similar vein, an email was sent by Mr

Gleeson, also on 26/02/16, in respect of his client, Ms Lorna Lee, Head of

Communications of GSOC, anticipating that Ms Lee might be referred to in the course of

the Inquiry’s Report. It was therefore requested that Mason Hayes and Curran, Solicitors,

be furnished with any excerpts from the draft text of the Report which contained reference

to the involvement of Ms Lee. This was with a view that submissions could be made in the

event that any error of fact or law should be considered to arise within such excerpts12. A

final Ruling was made in relation to the above submissions and requests and distributed to

the parties on the 18th of April 201613. In that Ruling, the Inquiry set out detailed written

reasons for the decision that a draft version of some or all of the report would not be

distributed in advance of its provision to the Minister.

5.13 A further submission was made, in the correspondence referred to at (vii) above,

requesting that the Inquiry would consider structuring the Report in such a way as to

facilitate its severance into “comments/recommendations/findings” of a general nature

and separate from any comments or findings specific to individual designated officers,

thereby making it easier for the Minister to divide the material of the Report into a “public”

and “non-public” part, should the Minister choose to publish to the general public such

portions of the Report that have a bearing on matters of general importance and potential

future courses of action to be taken in similar cases. It was further suggested that aliases

could be used with the actual names of officers being furnished to the Minister in a separate

document.


35

5.14 No ruling was issued to the parties on that question prior to the finalisation of this

report. However, the Inquiry is of the view that its obligation under s.109 of the 2005 Act

is to report fully to the Minister on all issues arising within its remit. The Inquiry has no

role in determining what is to happen to its report thereafter. It is a matter for the Minister

and her advisers to consider whether, and if so in what form, the report or any portion

thereof should be disseminated either to specific individuals or to the public generally. The

Minister is, of course, required under s.109 to send the full report to GSOC. However,

any further dissemination is a matter for the Minister and not for the Inquiry. It did not

seem to the Inquiry that it would be appropriate to adjust what would otherwise be the

structure and content of a full report in a manner which might be considered to be pre-

emptive of the decision of the Minister as to whether to publish or, indeed, what to publish

and in what form. As will be seen, the Report does not, therefore, conform with much of

the suggestions made in the relevant submission of Mason Hayes & Curran. Whether, and

if so in what form, all or any aspects of this report come to be disseminated in a wider

fashion is entirely a matter for the Minister.

(6) The Issues for Resolution

6.1 As identified earlier in this part of the report, the Inquiry itself specified certain issues

which it considered, on the basis of the information then available to it, to remain open for

debate (“the Issues Document”). All interested parties were invited to comment on the

Issues Document and identify any further issues which, in their view, ought to be

considered. In addition, as already noted, it was made clear, at the beginning of the taking

of evidence in Phase II, that it would be appropriate for any party who might wish

ultimately to submit that criticism be directed to a particular individual, to put that potential

criticism to the witness in question so as to afford that witness a reasonable opportunity to

deal with any such potential criticism. Within the overall parameters of the areas which

had been identified by the Inquiry in the Issues Document a range of specific matters were

put to various witnesses in that context.

6.2 In addition, it should be noted that the Inquiry had already made clear that it would

not propose to criticise any individual outside the parameters of the issues identified in the

36

Issues Document without giving prior notice of such potential criticism thus affording a

further opportunity to give evidence or make submissions on the point in question. In the

events that happened the Inquiry did not identify any issues beyond those contained in the

Issues Document which gave rise to a possible question of criticism. No submissions were

received from interested partied that suggested that any further issues arose. On that basis

the issues which remain for consideration are, in substance, those identified in the Issues

Document together with the specific matters raised, in the context of those issues, in cross-

examination of the various witnesses. The issues were identified as follows:

I. The initial decision to designate an inquiry under s.98 of the 2005 Act which was

made on the 1st January, 2015.

This issue involved the justification both for recommending that such a course of

action be adopted and for the decision actually made to that effect based on the

information available at that time. Moreover considerations which went into both

the recommendation and decision and the timing of the making of that decision

having regard to the information available at that stage were also required to be

examined.

II. The initial taking of accounts from relevant members of An Garda Síochána and

in particular the three members who had been identified as having had contact with

Ms Sheena Stewart and who were specified as being the subject of the s.98

investigation

The decision which was taken not to pursue the early direct taking of accounts by

GSOC officers from the members concerned and the decision to leave the taking

of such accounts to the gardaí themselves was required to be considered. In that

context the extent to which it may or may not have been made clear to the members

concerned that the statements which they were asked to make were not simply

statements for the purposes of an RTA investigation file but were also statements

to be taken in the context of a GSOC s.98 investigation was also required to be

considered. The fact that such statements would, for that reason, be uncautioned

was further required to be examined.

37

III. The “extension” of the GSOC investigation to one involving possible offences

concerning making false and misleading statements or perverting the course of

justice.

The justification for the extension of the investigation into one which included such

possible offences having regard to the materials and information available at the

relevant time was required to be assessed.

IV. The decision to interview Sgt Galvin and Gda Clancy under caution.

This issue was closely connected with issue III. However, there was, at least on one

view, a separate question of whether interviews under caution were nonetheless

appropriate and justified. V. The interviews themselves.

Evidence was heard in respect of the conduct of the interviews of Gda Clancy and

Sgt Galvin. In the early stages of the process it was indicated that one issue which

might be included for consideration was the question of whether there was any

evidence to suggest that there was anything inappropriate about the manner in

which the interviews under caution of Sgt Galvin and Gda Clancy were conducted.

However, it was indicated by the Inquiry at a relatively early stage in the process

that no evidence or materials had been brought to light which gave rise to any

concern about the manner in which the relevant interviews were conducted. In

common with all other issues-related questions it was made clear that the early view

taken by the Inquiry to the effect that there was no evidence or materials to suggest

that there was anything inappropriate in the manner in which the interviews

themselves were conducted was provisional, subject to the consideration of any

submissions which might be made by interested parties and/or to the emergence of

any further evidence or materials which might lead to that question being revisited.

No such submissions were received. No materials or evidence came to light to

suggest that the issue should be revisited. It follows that the issue concerned was

provisionally closed and, in the events that happened, was not reopened.

VI. The releasing of information concerning the status of the GSOC investigation.

38

It was necessary to consider the justification for the decisions or recommendations

made other than by designated officers after the death of Sgt Galvin to release

certain information concerning the status of the GSOC investigation and also the

decisions made by designated officers as to the manner and timing of the release of

such information and its communication to the family of the late Sgt Galvin.

VII. Communications Generally

From an early stage it became clear that there were a number of general issues

concerning the extent to which those members of An Garda Síochána who were

the subject of the GSOC investigation were kept informed of developments

(including, in particular, the fact that there was a criminal investigation which

involved them in being) and also the extent to which those members (and members

of An Garda Síochána generally) were aware of the general practice of GSOC to a

sufficient extent to avoid misunderstanding.

6.3 With the exception of the fact that, for the reasons noted earlier, the issue or potential

issue concerning the conduct of the cautioned interviews themselves were closed and not

reopened, it should be noted that the broad range of the issues remained the same from an

early stage in the Inquiry until its conclusion. No material submissions or representations

were made to the effect that further or different issues should be considered. The Inquiry

did not, itself, identify any such further issues. Obviously the precise points of detail which

arose in the context of each of the surviving issues came to be refined in the course of the

process not least the questioning of witnesses by Counsel for the Inquiry during Phase I,

the cross-examination of witnesses during Phase II and the submissions of the parties.

However, the broad areas of potential controversy did not, in themselves, change to any

material extent. As will be seen later in this report, therefore, the issues which it will be

necessary to address are the issues which have been set out in the preceding paragraphs,

albeit that some of them have been combined.

39

(7) Costs

7.1 The relevant provisions of the 2005 Act do not confer on a judge conducting an inquiry

under s.102 any role or power in relation to the award of costs to parties represented at

such an inquiry or, indeed, the expenses of witnesses required to attend. The Inquiry was

mindful of the fact that two of the main parties likely to be represented, being GSOC and

its designated officers together with An Garda Síochána and individual members of An

Garda Síochána, were publicly funded so that neither the costs of any representation which

such persons or bodies might consider necessary, nor the expenses for the attendance of

relevant witnesses from those bodies was likely to cause any difficulty.

7.2 On the other hand the Inquiry was mindful of the fact that it was both likely and

reasonable that member of the Galvin family would wish to play a full role in the Inquiry

and that there was no obvious source of funding in that regard. Furthermore, non State

witnesses were also likely to be required. On that basis the Inquiry requested the Dept. of

Justice to consider putting in place an appropriate scheme to cover the reasonable legal

costs which might be incurred in arranging for the representation of such parties together

with the expenses which would be likely to arise for the attendance of witnesses or other

persons whose presence might be considered desirable by the Inquiry. Happily the

Minister for Justice, in conjunction with the Minister for Public Expenditure, agreed to put

in place a scheme which was closely based on the arrangements which had previously been

agreed in respect of Commissions of Inquiry. That scheme was slightly amended to reflect

certain particular aspects of this inquiry. The Inquiry welcomed the provisions made and

should record that it did not appear to the Inquiry that any difficulty was, thereafter,

encountered either in relation to facilitating the attendance of necessary parties or witnesses

or, indeed, securing legal representation. The scheme is attached hereto14.

7.3 While the question of third party costs and expenses in the context of public interest

inquiries can always generate controversy, it seemed particularly important in the context

of this inquiry that there not seem to be an undue disparity between the position of publicly

funded bodies, on the one hand, and other interested parties who at least had as great an

14 Appendix 14

40

interest with the outcome of the Inquiry, who would not have had, in the absence of an

appropriate scheme, access to funded assistance.

(8) One Final Observation

8.1 The Inquiry considers that it would be remiss if it did not turn, at this stage, to one

final observation on the process and issues in the light of what the Inquiry considers to be

very misleading publicity which appeared in the Sunday Times of the 31st January, 2016.

In an article which appeared on page 8 of that edition, it was suggested that GSOC

“sought to have one of its commissioners excluded from giving evidence” to the Inquiry.

It is correct to state that there was a debate about the precise parameters of the matters on

which Commissioner Fitzgerald could be questioned. That debate and the result thereof

have already been addressed in the rulings section of this report and it is also true that one

of the matters which was material to that debate was the fact that the conduct of

Commissioner Fitzgerald, not being a designated officer, was not the subject of the inquiry.

In that limited sense there was at least some tangential accuracy in the article.

8.2 However the suggestion both in the article and, in particular, in the headline that GSOC

attempted to “exempt” Commissioner Fitzgerald from giving evidence is not only

inaccurate but is the direct opposite of the truth.

8.3 The facts are as follows. As it happens the Inquiry, towards the end of Phase I, in

conjunction with its Counsel, gave some consideration as to whether it should require the

attendance of Commissioner Fitzgerald to give evidence. In the light of some of the

evidence tendered in the course of Phase I it appeared to the Inquiry that it might well be

the case that Commissioner Fitzgerald would have relevant evidence to give. However,

while that matter remained under consideration, a letter dated the 7th of October 2015 was

received from Mason Hayes & Curran on behalf of GSOC which actually offered to make

Commissioner Fitzgerald available to give evidence. In the light of that offer it was no

longer necessary for the Inquiry to consider whether it should require Commissioner

Fitzgerald’s attendance.

41

8.4 The suggestion, therefore, that GSOC attempted to “exempt” Commissioner

Fitzgerald from giving evidence is the direct opposite of the truth. GSOC in fact offered

evidence from Commissioner Fitzgerald. The only issue concerning his evidence which

arose was the legitimate concern of counsel to ensure that the questioning of

Commissioner Fitzgerald, as with all other witnesses, was confined within the bounds of

the issues which were within the Inquiry’s remit.

8.5 It should also be noted that the same article contains a further significant inaccuracy.

The article suggests that “CCTV footage shows her standing on the edge of a road when

his vehicle stopped”. The “her” is a reference to Sheena Stewart and the “his” is a reference

to Sgt Galvin. This report contains a full description of what can be seen on the CCTV

footage concerned. As noted that CCTV footage gives a very different picture to the one

described in the Sunday Times article. It shows Miss Stewart lying on the roadway as the

vehicle approaches.

8.6 The Inquiry has no reason to believe that the journalist who wrote the article in

question did other than accurately recount information imparted by a source. But it is

abundantly clear that the information thus imparted was materially and significantly

inaccurate and clearly designed to do damage to GSOC both in respect of the suggestion

that GSOC had sought to exempt Commissioner Fitzgerald from giving evidence but also

in the significant understatement of what was shown on the CCTV footage (which was

clearly designed to suggest that the GSOC investigation was much ado about nothing). It

will never be possible to determine who that source was. However, it seems to clearly

follow that the source was either ill-informed with little direct knowledge of what occurred

at the Inquiry or was deliberately disingenuous in relation to the information supplied to

the journalist concerned.

8.7 The Inquiry makes these observations partly for the purposes of putting the record

straight but also to indicate the dangers of potentially ill-informed or, worse still,

disingenuous leaks. That risk is also material to the question of whether it is appropriate

to distribute draft reports, a topic on which the Inquiry ruled as a described elsewhere in

this report.

42

PART III – THE FACTS

(9) Sgt Galvin

9.1 While it is true that the specific focus of this inquiry is into the conduct of those

designated officers of GSOC who were involved in the investigation into the death of

Sheena Stewart, it would be naïve and inappropriate not to recognise that the reason for

this inquiry is the death of Sgt Galvin. Before going on to outline the sequence of events

relevant to the Inquiry’s remit it is, therefore, important to say something about Sgt Galvin

himself, while recognising that the terms of reference do include the conduct of the GSOC

investigation, not only insofar as it related to Sgt Galvin but also the two other members

of An Garda Síochána involved, being Sgt Doyle and Garda Clancy.

9.2 From an early stage it became very apparent to the Inquiry that Sergeant Michael Galvin

was a member of An Garda Síochána of exceptional integrity who was a consummate

gentleman and an exemplary sergeant.

9.3 Moreover, he was an individual who was intrinsically involved in his community on a

voluntary basis, from being on the Board of Management at his children’s school, to

helping with the Tidy Towns competition and was clearly a mainstay within his community

of Manorhamilton. Undoubtedly he was utterly devoted to his wife, Colette, and their three

children and has been consistently described as both an excellent husband and father. The

testimony of each and every witness who knew Sgt Galvin was entirely consistent in

describing him in the fashion just described. The testimonial of those witnesses went very

far indeed beyond the sort of kind words that might often be spoken in tragic

circumstances. There can be no doubt on the evidence but that Sgt Galvin was both an

outstanding member of An Garda Síochána and also an outstanding person.

9.4 Sergeant Galvin was also an excellent sportsman, who represented Sligo in both minor

and senior football and captained both teams. Later, he was manager of both hurling and

football teams at club and county level. As hurling manager he won the AllIreland Nicky

43

Rackard Cup in 2008 and that same year he was also nominated for the Sligo Person of the

Year Award.

9.5 In direct evidence by his colleagues he was described as the “rock of the station” in

his capacity as the Sergeant-in-Charge of Ballyshannon Garda Station. One colleague told

the Inquiry how they went on a call one day to an elderly lady who was suffering from the

first stages of dementia. They brought the lady home and her house was cold. Sgt Galvin

lit the fire and swept the floor for her. He did not want to leave the lady cold in her house.

This was an illuminating example of how dutiful and honourable a man Sgt Galvin was.

The evidence heard consistently demonstrated that he treated those he encountered with

dignity and respect.

9.6 Perhaps one of the most tragic aspects of this case is that it is apparent on the evidence

that Sgt Galvin had volunteered to go into the Garda station to help his colleagues on New

Year’s Eve night. One colleague had asked to be relieved from duty because of a difficult

family situation. It is clear that Sgt Galvin immediately volunteered to take the place of the

colleague concerned on what obviously had the potential to be a difficult roster. It is,

indeed, ironic that Sgt Galvin, but for volunteering in that manner, would not have been

on duty at any time which would have led him to have had any involvement with Ms Sheena

Stewart. It was generally observed that this selfless action was testament to the type of

diligent, conscientious, principled colleague that he was.

9.7 It is outside the scope of this Inquiry to attempt to determine the precise reasons why

Sgt Galvin took his own life. The focus of the Inquiry is, necessarily, on the conduct of

GSOC designated officers. There can be no doubt on all of the evidence that the fact that

he became the subject of an investigation came to weigh very heavily on Sgt Galvin and

that, as time went on, he became increasingly depressed by the situation in which he found

himself. It will be necessary to address, in due course, the circumstances in which Sgt

Galvin came to know that he was the subject of a criminal investigation. However, it is

clear that, from that time onwards, he was increasingly pre-occupied by the situation in

which he found himself. Many of his colleagues, family and friends gave evidence of how,

in different ways, he ceased to be himself. It is also apparent that, as time wore on and the

time for his interview under caution approached, he became increasingly despondent about

44

the situation. Many witnesses gave evidence of attempting, whether at a professional,

collegiate or personal level, to give reassurance that his situation was not at all as serious as

he seemed to have come to believe. However, the evidence was equally consistent in

making clear that Sgt Galvin seemed to obtain very little actual reassurance from those

attempts.

9.8 There can be little doubt but that Sgt Galvin regarded his reputation for integrity very

highly. It would appear that he considered the investigation to have impugned that

reputation and that this imputation had a very significant effect on him.

9.9 It is, indeed, tragic that such a fine member of An Garda Síochána and member of his

local community came to have such a depressed view of his situation. But, as indicated in

the introduction to this report, the fact that there were tragic consequences does not, of

itself, mean that there was significant fault. The tragedy does, however, behold the Inquiry

to consider whether there was any fault or, even in the absence of fault, whether lessons

can be learned from this case to minimise the risk of something similar happening in the

future. Before leaving this specific section of the report, the Inquiry, and each of those who

worked for the Inquiry, would wish to express their condolences to Colette Galvin, the

other members of the extended Galvin family and Sgt Galvin’s many colleagues and

friends.

(10) The Uncontroversial facts

(i) Introduction

10.1 The purpose of this section of the Inquiry’s report is to set out in detail the sequence

of events, relevant to the Inquiry’s remit, which was established in the course of the

evidence. As will become clear there were only a limited number of aspects of those events

which were the subject of dispute or conflicting evidence. It will be necessary to return to

an assessment of the evidence in respect of those issues of controversy in due course.

However, for the purposes of this narrative, it is intended simply to identify any such

disputes for the purposes of noting the necessity to return to the issues raised.

45

(ii) The Tragic Death of Ms Sheena Stewart

10.2 As noted earlier the events with which the Inquiry is concerned commence with the

death of Ms Sheena Stewart as a result of a RTA in the early hours of the 1st January, 2015.

But it was, of course, the fact that there had been interaction between Ms Stewart and some

members of An Garda Síochána prior to her death that gave rise to the GSOC investigation

in the first place. In that context it is appropriate to start by identifying that contact. The

first such contact occurred at approximately 12.50 am when Sgt Stuart Doyle and Gda John

Clancy came across Ms Stewart on the roadway leading out of Bundoran towards

Ballyshannon.

10.3 It would appear that Gda Clancy and Sgt Doyle had earlier noticed Ms Stewart but

only in a very casual sense in that they recalled that, when they later came across her, they

recollected that they had seen her earlier in the evening walking towards Finner. The gardaí

in question spoke to Ms Stewart whom they found to be upset, apparently as a result of

having had a row with her boyfriend. It would also appear that a further cause of upset

was her wish, in the circumstances, to get home to Letterkenny. With that in mind the

gardaí took her to the Bus Eireann bus station on Main St. in Ballyshannon from where, it

was anticipated, she would be able to get a bus home.

10.4 Those gardaí left immediately after dropping Ms Stewart near the bus station.

However, a number of members of the public subsequently made contact with An Garda

Síochána and gave reports that Ms Stewart was lying on the roadway near the bus station.

First, there was a call to the 999 emergency number which was transmitted to Ballyshannon

garda station. Secondly, a concerned member of the public phoned a friend who was a

garda based in Donegal town. That garda also called Ballyshannon garda station to pass

on the message that there was a woman behaving in an erratic and dangerous manner on

the roadway.

10.5 By this time Gda Clancy was back in the garda station at Ballyshannon. Reports of

what appeared to be a serious hit and run incident had been received and the intention was

that Gda Clancy, this time in the company of Sgt Michael Galvin, would travel to

46

investigate the incident which had occurred on the Donegal Road. In the light of the

reports received concerning a woman lying on the roadway and generally behaving

erratically near the bus station it was decided that Sgt Galvin and Gda Clancy would stop

by the bus station on their way from the garda station to the Donegal Road. The normal

route between those two venues would pass by the bus station in any event.

10.6 As will appear later, one of the principal issues into which GSOC inquired was the

precise circumstances in which Sgt Galvin and Gda Clancy came across Ms Stewart. It

will, therefore, be necessary to return to the detail of that question in due course. However,

it is clear from CCTV footage seen by the Inquiry that, as the garda van (which was being

driven by Gda Clancy with Sgt Galvin in the passenger seat) approached the scene, Ms

Stewart was lying on the roadway but got up and moved quickly onto the footpath.

Thereafter both gardaí spoke to Ms Stewart. Gda Clancy gave evidence that Ms Stewart

was distressed because she felt she might have missed her bus back to Letterkenny. The

gardaí sought to reassure her that they would return after they had attended to the incident

on the Donegal Road. Gda Clancy gave evidence that Sgt Galvin intended, if it should

prove necessary, to make arrangements for Ms Stewart to stay in a B & B type

accommodation in Ballyshannon. It would appear that Sgt Galvin had often provided that

type of assistance in the past.

10.7 In any event Sgt Galvin and Gda Clancy left Ms Stewart standing on the pavement

opposite, or almost opposite, the bus station and carried on to investigate the incident on

the Donegal Road. For completeness it should be noted that it ultimately transpired that

the incident concerned was not, in fact, a hit and run, although it is clear on all the evidence

that gardaí believed it to be of such a serious nature at the time.

10.8 At about 1.47 am, however, Ms Stewart was again lying on the roadway near the bus

station when she was fatally injured as a result of being hit by a minibus/taxi being driven

a William McKee. Gardaí were contacted by bystanders and Sgt Doyle went to the scene.

Sgt Doyle gave evidence that he realised that the victim of the road traffic incident was the

woman he had spoken and given a lift to earlier in the evening.

10.9 Before passing from the direct events relating to the death of Ms Stewart and garda

contact with her prior to that death the Inquiry should note one further line of investigation

47

which it undertook but only for the purposes of explaining why that line of investigation

turned out to have no bearing on any of the issues which the Inquiry was required to

consider. The contemporary documentation obtained by the Inquiry from An Garda

Síochána did contain reference to the possibility that Ms Stewart might have been involved

in an earlier incident with a vehicle in Bundoran at a time prior to her being picked up by

Sgt Doyle and Gda Clancy on the roadway out of Bundoran heading towards Ballyshannon.

That documentation also suggested that a view had been taken at a relatively early stage

that the person involved in the incident in question was not Ms Stewart. In the course of

evidence before the Inquiry some members of An Garda Síochána were asked about that

incident. The reasons why it was potentially a matter of interest to the Inquiry were

twofold. First, it is clear that GSOC were unaware, at the time of the GSOC investigation

with which this inquiry is concerned, of any such potential incident. Second, it would have

been material to the Inquiry’s remit if it transpired that gardaí were, on the evening in

question, aware of a further earlier incident involving Ms Stewart and a motor vehicle

particularly given that GSOC were never informed of any such incident.

10.10 As a result of the fact that the Inquiry had demonstrated an interest in this matter it

was decided by An Garda Síochána that Gda Kevin Garvin, who is an expert in analysing

CCTV footage, would look at the matter again. Further evidence was then given by Gda

Garvin as a result of which the view was expressed that the person who was involved in

the incident in question in Bundoran was, indeed, Ms Stewart. On the basis of that

evidence and its own consideration of the facts, the Inquiry is satisfied that there was an

earlier incident in Bundoran involving Ms Stewart in which she was brushed against by a

moving car while walking on the roadway. However, the Inquiry is also satisfied that gardaí,

at the time in question, had come to the genuine conclusion that the person involved in

the incident in question was not Ms Stewart.

10.11 However, of much greater significance, further evidence became available which

made clear the circumstances in which the gardaí came to know of the incident at all. It

should be emphasised that the incident was not witnessed by any member of An Garda

Síochána. Furthermore, the evidence established that the driver of the car in question, after

he became aware of the death of Ms Stewart through the media, came to the view that the

person whom he had come close to knocking down because of the way in which she walked

48

on the roadway, was in fact Ms Stewart. That driver then reported the potential incident

to An Garda Síochána leading to the initial investigation which concluded that the person

in question was not Ms Stewart. However, what is absolutely clear is that, on the night in

question, no member of An Garda Síochána was aware of the relevant incident for it was

first reported to An Garda Síochána at least a day later, if not more. Thus the incident in

question could have played no role in any investigation of the conduct of An Garda

Síochána for they were not aware of it at any time material to their actions in respect of Ms

Stewart and there is no basis on which it could reasonably be suggested that they should

have been aware of it.

10.12 It is next necessary to turn to the initial consequences of the tragic death of Ms

Stewart leading to the establishment of a GSOC investigation into the matter.

(iii) The Reference to GSOC

10.13 It will be necessary, in due course, to return to certain aspects of the legislative

framework within which GSOC operates. However, one aspect of that framework is to be

found in s.102 of the 2005 Act. That section provides that the Commissioner of An Garda

Síochána should refer to GSOC any case where it appears that the conduct of a member

of An Garda Síochána may have caused the death, or serious injury, of, or to, a person. As

the precise circumstances in which such a reference should be made was at least the subject

of some minor differences between the parties, that question is a matter to which it will be

necessary to return in due course.

10.14 However, for present purposes, it is appropriate to record that the incident involving

the death of Ms Stewart was reported to the Superintendent on call for the area on the

night in question, being Supt Michael Finan. Supt Finan was based in Letterkenny, but

travelled to Ballyshannon Garda Station. While the legislation speaks of the Commissioner

referring a matter to GSOC, it is agreed that the function in question is delegated to the

relevant Superintendent so that the decision on whether to refer the matter to GSOC was

in the hands of Supt Finan. One of the issues which was the subject of some debate before

the Inquiry was as to the precise state of knowledge, at a very early stage, of relevant GSOC

49

officials. As the initial contact with GSOC came from Supt Finan, his precise state of

knowledge, at the time in question, is also relevant to that question. That is an issue to

which it will be necessary to return.

10.15 In any event, Supt Finan took the view that it was appropriate to refer the matter to

GSOC under s.102 of the 2005 Act. In accordance with accepted practice he contacted

Command & Control and requested that the GSOC officer on call contact him. He was

subsequently contacted by SIO Nick Harden. It was agreed that SIO Harden would travel

to Ballyshannon. Prior to the arrival of SIO Harden (who was accompanied by IO Maurice

Breen), Supt Finan spoke to Insp Joyce who informed Supt Finan of the facts as he then

understood them to be. It would also appear that Supt Finan had obtained a report from

Sgt Doyle and as a result of the information which he received in that regard, prepared a

report for submission to the Assistant Commissioner of An Garda Síochána for the

Northern Region.

10.16 However, in the meantime, SIO Harden made contact with the GSOC Director of

the Investigations, DI Ken Isaac, and they had a discussion about the designation of the

investigation. It was agreed that the investigation would be conducted under s.98 of the

2005 Act which, in substance, means that the investigation was a criminal investigation. In

accordance with the appropriate practice a recommendation in that regard was made by

SIO Harden but the final decision was that of DI Isaac. There was significant controversy

between the parties represented at the Inquiry as to whether the designation of the

investigation as a criminal investigation was, in all the circumstances, justified on the basis

of the circumstances that existed at the time in question. That issue will be returned to in

detail in due course. However, it does appear clear that the information available to GSOC

at the time in question consisted of information which had been imparted by Supt Finan

in his phone conversation with SIO Harden. It was not suggested that either SIO Harden

or DI Ken Isaac, had any other source of information. Finally, it should be noted that Supt

Finan directed that the point of contact for the GSOC officers, whose arrival in

Ballyshannon was anticipated, was to be Insp Joyce.

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(iv) The GSOC Investigation: The Initial Steps

10.17 SIO Harden and IO Breen arrived at Ballyshannon on the evening of the 1st January.

A meeting took place between those officers and Insp Joyce.

10.18 There are differences in the evidence of the various persons who were there as to

precisely what was or was not said. Those differences centre around the question of

whether it was communicated (or, perhaps, on one view, adequately or properly

communicated) to Insp Joyce that GSOC were engaged in a criminal investigation. In

addition, the evidence is not entirely consistent concerning the understanding of the parties

as to precisely how the investigation by GSOC was to progress, particularly in the context

of the type of statements that were required from those gardaí who had had contact with

Ms Stewart.

10.19 However, some matters are not in dispute. It appears to have been understood by

all parties that Sgt Gerry Mullaney had been given the task of carrying out what one might

call an ordinary garda investigation into the RTA as a result of which Ms Stewart died. It

also appears to have been understood that there would be a certain overlap between the

two investigations and that certain materials, such as CCTV footage, would be likely to be

of importance to both.

10.20 In any event, the two GSOC officers concerned returned on the 2nd January and

provided a so-called “document request” which had been prepared by IO Breen. That request

was filled out on a standard form which the Inquiry understands GSOC officers use for

that purpose. Amongst the matters requested were statements from those members of An

Garda Síochána who had had contact with Sheena Stewart.

10.21 It would also appear clear that the initial focus of the GSOC investigation was as to

whether “appropriate actions were taken by An Garda Síochána in respect of dealing directly with the

deceased (Ms Stewart) or in response to calls from members of the public”.

10.22 It is also clear that on the same day, the 2nd January, an operational decision was

made to allocate the investigation to IO Daniel Gallagher who was based in Donegal and

51

who would report to SIO John Leeman. Insp Joyce was made aware that IO Gallagher

would be the point of contact from then on.

(v) The CCTV Footage

10.23 Gardaí collected CCTV footage from a number of sources, but of particular

relevance to the issues which arise in this Inquiry is the footage from the Bus Eireann

Depot.. Gda Garvin, who retrieved the CCTV footage as part of the Garda investigation,

confirmed in evidence that the time displayed on the CCTV footage from Ballyshannon

Bus Station is 2 minutes and 43 seconds slow. A copy of that footage was furnished to

IO Gallagher who viewed same on the 12th January and took the view, from looking

carefully at the footage concerned, that the gardaí in question (being Sgt Galvin and Gda

Clancy) “would have observed” that Ms Stewart was, as they approached her, “lying on the

roadway”.

10.24 As noted earlier, the Inquiry has had the opportunity to see the CCTV footage in

question. Furthermore, facilities were made available so that any witness could view the

footage concerned and make any comment that they wished on it. That footage appears,

at an early stage of the sequence in question, to show Ms Stewart sitting or standing in a

doorway or window on the far side of the road from the bus station and some little distance

up from it. Thereafter a bus pulls in and the view of the area where Ms Stewart had

previously been becomes obscured. However, when the bus pulls away at 01:19:15 it is

clear that Ms Stewart can be seen lying on the roadway. Some little time later a garda patrol

van can be seen approaching from the bridge on the left hand side of the screen.

The brake lights on the garda van are seen to be on as it comes into view at 01:21:22. and,

at the same time, Ms Stewart can be seen getting up from the roadway and then moving

quickly onto the footpath and running down what appears to be a lane. Thereafter, the

van pulls in and the two gardaí (being Sgt Galvin and Gda Clancy) can be seen talking to

Ms Stewart on the footpath.

10.25 Whatever about the circumstances in which the investigation was initially designated

as a criminal investigation under s.98 of the 2005 Act, it was certainly reasonable for IO

52

Gallagher, in the light of that CCTV footage, to regard it as appropriate to investigate

whether the gardaí in question had seen Ms Stewart lying on the roadway. However, at

that stage GSOC had not received any statements from the gardaí in question. That leads

to that next point in the sequence of events and, indeed, the next area of controversy being

the circumstances in which those garda statements were taken.

(vi) The Taking of the Garda Statements

10.26 Sgt Doyle had, in fact, prepared a report on the 1st January, 2015. He subsequently

provided a statement to Insp Joyce which contained the same information. On the 7th

January Gda Clancy made a statement in respect of the events of the night in question. Sgt

Galvin made a statement on the 25th January. The first question of controversy concerns

whether those members had been informed, prior to their making the statements in

question, that the statements were intended, at least in part, for use by GSOC and that, in

that context, it was required that each garda should justify his actions vis-à-vis Ms Stewart

on the evening in question.

10.27 It should be noted that Sgt Mullaney continued to gather materials in the ordinary

way in relation to the RTA investigation. Statements were taken from other members of

An Garda Síochána and members of the public. The entire file was provided to GSOC

once it had been completed.

10.28 Likewise, IO Gallagher took certain steps in relation to the GSOC investigation

including making contact with the Coroner in respect of GSOC’s involvement together

with making contact with the family of Sheena Stewart. He also sought the PULSE log in

respect of Sheena Stewart.

10.29 It was at this stage that it became clear that there had been no formal notification

of the existence of a s.98 investigation. It will be necessary to go into that issue in more

detail in due course. However, as a result, it would appear, of issues which had emerged

in the past concerning the timely making available of materials to GSOC from An Garda

Síochána, a common method of requesting materials (called the Gearáin system) was

53

established. However, when IO Gallagher sought the PULSE log through that system he

was told that there had been no formal notification of the s.98 investigation. As a result,

on the 25th January, IO Gallagher sent such a notification in accordance with the

Protocol. That involved an email letter to the Chief Superintendent of Garda Internal

Affairs to that effect which also suggested that Sgt Doyle, Sgt Galvin and Gda Clancy had

been identified as persons involved in the investigation.

10.30 As it is of some relevance to one of the issues which arose at the Inquiry (being the

question of communication and notification generally) it does need to be recorded that the

relevant correspondence was forwarded by Supt Louise Synott of Garda Internal Affairs

to the Divisional Office in Letterkenny. In accordance with standard practice it was

intended that the three members specified should be notified, in writing, that the incident

was being investigated under s.98 of the Act. Unfortunately it would appear that the email

in question was inadvertently deleted so that it was never passed along from the Divisional

Office in Letterkenny for communication to the three members concerned. It is in those

circumstances that it would appear that, despite the fact that GSOC sent a formal

notification to An Garda Síochána in accordance with the agreed protocols (even thought

it may have been somewhat late) the intended passing on of that information to the

members concerned never occurred. It will, as noted earlier, be necessary to return to that

question in the context of communication and information generally. It should also be

recorded that the evidence suggests that none of the three members concerned were ever

formally notified that they were the subject of a s.98 investigation.

10.31 In any event, on the 2nd February, 2015, IO Gallagher attended at Ballyshannon

garda station and received a number of materials which had been the subject of the request

made on the 2nd January. The materials included the statements from Sgt Doyle, Sgt Galvin

and Gda Clancy.

10.32 As noted earlier it will be necessary to return to the question of what the

understanding of the members concerned was as to the purpose of those statements. Be

that as it may it became clear, once those statements had been received and considered,

that there was an apparent conflict between the statements of Sgt Galvin and Gda Clancy,

on the one hand, and the CCTV footage already described.

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(vi) The Conflict

10.33 It is first appropriate to set out the relevant passages from the statements in question.

The relevant passages from the statements in question read as follows. Sgt Galvin said:

“As we approached the bus station I observed a lady who I now know to be Sheena Stewart on the footpath

on the left hand side of the road close to Erne Carpets. She was carrying what I would describe looked like

a sports bag. Gda Clancy stopped the van and I got out of the van and spoke to her. She informed me

that the bus to Letterkenny was gone and was concerned how she would get home. I told her to wait there

and that we would respond to a call on the Donegal Road where we thought a man had been knocked down

by car. I told her that we would return and try to help her when we were finished on the Donegal Road”.

10.34 Gda Clancy gave the following account in his statement: “On our way there we

received a radio message saying that there was a woman on the road at the bus station in Ballyshannon.

We were close to the bus station when we got the radio call. As we got near the bus station I saw Sheena

Stewart standing on the footpath. Her holdall bag was beside her. I stopped the van beside her and both

Sgt Galvin and myself spoke with her. She was concern [sic] that the bus had gone and she would be left

in Ballyshannon. Sgt Galvin informed her that we were on our way to an incident at the Donegal Road

and we would return to her as soon as we were finished there. As we left Sheena Stewart was sitting on

her holdall bag with her back against the wall of the Erne carpet shop. The time was approximately

1.27am.”

10.35 It would also appear that IO Gallagher had, prior to receiving those formal

statements, been informed as to what appeared to be the general garda account in his

briefing from SIO Harden on the 2nd of January 2015. His notes of that meeting indicate

that he was briefed on that issue as follows:

“…01:20 Sgt observed her sitting on bag opposite bus station – Sgt on route home

01:30 – back to Gda station – Sgt – observed Sgt and Garda talking to her

Reports of her on road, Garda checked – on footpath

Sgt

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CCTV from bus station covers incident

2 Sgts and 1 Garda…”

10.36 It is clear that the initial reference to “Sgt” refers to Sgt Doyle, who had seen Ms

Stewart at an earlier stage and then again passed by while Ms Stewart was talking to Sgt

Galvin and Gda Clancy. The reference to “observed Sgt and Garda” is, therefore, a

reference to Sgt Doyle observing Sgt Galvin and Gda Clancy. However, the report which

was conveyed to IO Gallagher suggests that, when those two members of An Garda

Síochána checked, Ms Stewart was on the footpath. It is in that context that IO Gallagher

initially identified a potential conflict between the account which had been communicated

to him and the CCTV footage which appeared to show Ms Stewart lying on the roadway

as the garda van approached.

10.37 Be that as it may, after the statements were obtained, a review of the GSOC

investigation took place on the 12th February. Those involved were SIO Leeman and IO

Gallagher. The record of that review suggests that a view was taken that the CCTV footage

did not appear to match the accounts of Sgt Galvin and Gda Clancy. The review further

suggested that those accounts, therefore, needed to be clarified “and that this should rightly be

done after caution”.

10.38 It should be noted that two other relevant aspects of the GSOC investigation

continued in parallel at this time. On the 2nd February IO Gallagher had received the RTA

investigation file and, arising therefrom, arranged to take supplemental statements from

several members of the public identified from that file who appeared to be in a position to

give evidence relating to the behaviour of Sheena Stewart and in particular her positioning

at the time when Sgt Galvin and Gda Clancy had come into contact with her. Those

interviews took place in late February with a statement being taken from Stephen Nairn by

IO Gallagher on the 21st February and statements being taken from a Denis Gordon and

a Maurice Kane by AIO Michael Kilcoyne on the 26th February.

10.39 Thereafter a further case review occurred on the 9th March involving SIO Rody

Butler and IO Gallagher at which it was agreed that the interview under caution of both

Sgt Galvin and Gda Clancy (which had been decided on at the previous review on the

56

16thFebruary) should take place after toxicology reports had been obtained. Attempts to

arrange the interviews under caution commenced in the latter part of March.

(vii) The Interviews under Caution

10.40 IO Gallagher commenced attempting to arrange the interviews under caution on the

24th March when he contacted Ballyshannon garda station but did not manage to speak

with either of the two members concerned. He did, however, leave messages for both of

them. Ultimately contact was made with Sgt Galvin on the 26th March by phone. During

that conversation IO Gallagher indicated to Sgt Galvin that he was seeking to interview

him under caution. Sgt Galvin expressed surprise and inquired what the purpose of the

interview was. IO Gallagher explained that it arose out of a “discrepancy between his

witness statement and the CCTV footage”.

10.41 Later on the same day Sgt Galvin called back to IO Gallagher and asked what the

basis for any criminal investigation was. IO Gallagher informed him that it arose under

either or both as s.110 of the 2005 Act or in relation to an allegation of perverting the

course of justice contrary to common law. There would appear to be little doubt, from all

of the evidence which the Inquiry has heard, that the receipt of those phone calls and the

subsequent cautioned interview had a profound effect on Sgt Galvin. It should also be

recorded at this stage that it seems clear on the evidence that, at the time when he received

that initial telephone contact, Sgt Galvin was unaware that he was the subject of a criminal

investigation under s.98 of the 2005 Act. Why that was so is a matter which has already

been touched on and will need to be considered in more detail later in the course of this

report.

10.42 IO Gallagher was also in contact with Gda Clancy at or around the same time and

provided the same information to him. Arrangements were made with Gda Clancy that he

would be interviewed on the 6th May at the office of his (Gda Clancy’s) solicitor in Sligo.

IO Gallagher initially sought to interview Sgt Galvin during April. However, this date was

postponed to enable Sgt Galvin to consult with his solicitor. The evidence suggests that

Sgt Galvin attended for two consultations and had numerous telephone conversations with

57

his solicitors in Dublin being Michael Hegarty and Gerald O’Donnell of Smyth O’Brien

Hegarty. The evidence confirms that Sgt Galvin was deeply concerned and agitated about

the investigation and communicated that fact to his legal advisers. In conjunction with

those legal advisers it was agreed by Sgt Galvin that a written statement would be drafted

and that this statement would be submitted at the interview with GSOC.

10.43 On the 28th April Smyth O’Brien Hegarty, acting on behalf of Sgt Galvin, sent a

letter to IO Gallagher seeking clarification as to the reason for the cautioned interview and

also raising the fact that Sgt Galvin had not been notified that he was under investigation.

IO Gallagher replied by letter of the 5th May setting out the offences concerned and

suggested that the notification procedures contained in s.88 of the 2005Act did not apply

in the case of Sgt Galvin as the investigation did not, in his case, arise from a complaint

from a member of the public but rather because of a reference to GSOC under s.102 of

the Act.

10.44 Thereafter the respective interviews under caution occurred. The first in time was

that of Gda Clancy. In advance of those interviews IO Gallagher in conjunction with SIO

Butler prepared a document which was intended to be an aid for the conduct of the

questioning of both members. At his interview Gda Clancy submitted a pre-prepared

statement but then questions were put to him by IO Gallagher largely following the format

that had been set out in the pre-prepared document. The interview with Gda Clancy lasted

approximately one hour and 44 minutes.

10.45 The interview with Sgt Galvin occurred on the 20th May at GSOC headquarters in

Dublin. Sgt Galvin was accompanied by his solicitor, Mr O’Donnell. It should be recorded

that GSOC had previously indicated that the interview could be conducted, if Sgt Galvin

wished, at a suitable location near his base. However, the interview as ultimately arranged

took place in Dublin where Sgt Galvin’s solicitors are based. For this interview IO

Gallagher was accompanied by IO Pauline Byrne. At the outset Sgt Galvin indicated that

he did not wish or require that the interview be recorded. Having been cautioned Sgt

Galvin indicated that he had a prepared statement and this statement was read into the

record. It was further indicated by Sgt Galvin that he did not wish to answer any further

questions and on that basis none of the matters which had been prepared by GSOC in

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advance were, in fact, put to Sgt Galvin. The interview with Sgt Galvin lasted

approximately twelve minutes.

(viii) After the Cautioned Interviews

10.46 As already noted the interview with Sgt Galvin happened on the 20th May and

followed on from the earlier interview with Gda Clancy which had occurred on the 6th

May. On the day following the interview with Sgt Galvin (being the 21st May) IO Gallagher

prepared an email and summary of the investigation. That document recommended against

criminal prosecution. That documentation was forwarded to SIO Johan Groenewald (who

by then was IO Gallagher’s line supervisor) who suggested that the documentation would

be forwarded to legal affairs of GSOC for their views. On the 27th May Niamh McKeague

of legal affairs responded to IO Gallagher indicating her agreement that no criminal

conduct was disclosed. However, her response suggested that, in the circumstances, it was

necessary to forward relevant materials to the DPP This would appear to have been in the

light of what the evidence established was a standard GSOC policy in any investigation

where GSOC were of the view that Art. 2 of the European Convention on Human Rights

was engaged. In such circumstances it would appear to have been standard GSOC policy

that the matter must be submitted to the DPP for consideration before a final decision not

to proceed with a criminal investigation was made. It will be necessary to return to that

policy and its application in this case, in due course.

10.47 However, in the light of some of the publicity surrounding the events involving the

death of the late Sgt Galvin and indeed in the light of the misapprehensions under which

some of his colleagues remained when they gave evidence before the Inquiry, it is important

that certain factual matters are set out very clearly.

10.48 There were suggestions made that there was, as it were, a letter on file or prepared

to be sent to Sgt Galvin indicating that he had been cleared which, for some reason, had

just not been sent. There is no evidence that this was the case and the Inquiry is fully

satisfied that no such letter was ever prepared. It would be entirely inconsistent with the

contemporaneous written record and the consistent evidence of all of the GSOC witnesses.

59

As noted earlier it will be necessary to return to standard practice in due course. But what

occurred does appear to the Inquiry to have fully complied with that standard practice.

The investigation officer concerned prepares a report which is passed up the line to a senior

investigating officer. A legal view is also taken and the matter goes to the Commissioners.

In cases involving a death after garda contact, and even where the considered view within

GSOC is against a criminal prosecution, nonetheless the file is sent to the DPP It is clear

that, had it not been for the intervening and tragic event of Sgt Galvin’s death, it would

have taken at least a number of weeks and, perhaps, over a month before those standard

procedures had been completed and a final decision taken, after the DPP had been

consulted, to the effect that no prosecution was to take place.

10.49 It is also clear that standard practice at the time would have required that Sgt Galvin

would have been informed of the fact that a file had gone to the DPP but would not, until

the views of the DPP became known, have been informed as to what recommendation

GSOC were making. Whether there is any basis for suggesting that, either generally, or in

the particular circumstances of this case, a different process should have been followed is

a matter to which it will be necessary to return. However, it is clear to the Inquiry that

what happened in this case followed standard practice and that, in the light of the fact that

IO Gallagher, as the investigating officer on the ground, made his recommendation as of

the 21st May, there was, unfortunately, no reality to there having been any prospect of Sgt

Galvin being informed of the fact that no prosecution was to progress for at least five or

six weeks thereafter. Tragically, as we know, Sgt Galvin took his own life one week later.

10.50 It is, in the Inquiry’s view, important not to get overly involved in a debate about

the semantics of how one might describe the situation as of either the 21st May when IO

Gallagher issued his draft recommendation, or, indeed, the 27th May when legal affairs

indicated their agreement. However, the Inquiry does not feel that it could reasonably be

said that Sgt Galvin had been “cleared” as of either of those dates in the strict sense of that

term. IO Gallagher’s recommendation was just that, a recommendation. Legal Affairs’

agreement was conditional on their additional recommendation that the matter should go

to the DPP. Neither of those positions could be said to be absolutely final.

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10.51 There is, of course, a very real sense in which it can properly be said that, as of the

time in question things had moved very positively in Sgt Galvin’s favour. The investigating

officer on the ground had recommended no prosecution; his superior officer did not demur

and legal affairs agreed. It is, perhaps, not particularly surprising that, in the fraught

aftermath of Sgt Galvin’s tragic death, some matters were described from time to time in a

way which was less than strictly accurate. However, the Inquiry is required to look

objectively at the facts and the evidence. It does not seem to the Inquiry that it can properly

be said, in those circumstances, that Sgt Galvin had been the subject of a final decision not

to prosecute at any time prior to his death. Rather the situation was that the relevant

personnel within GSOC had, subject to a final consultation with the DPP, agreed to

recommend that there should be no prosecution.

10.52 It should also be added that, even to the extent that a final decision to recommend

that there be no prosecution is concerned, that determination, internal to GSOC, was only

complete on the 27th May when IO Gallagher’s initial recommendation had been the

subject of the agreement of both his superior and legal affairs. Indeed, on one view, it

might be said that it was not even internally complete on that date for normal practice

would have required IO Gallagher to prepare a formal report which would then have the

subject of formal legal advice from legal affairs both of which documents would have been

placed before the Commissioners themselves for a final decision.

10.53 In the light of events as they stood on the 27th May it would have been highly

improbable that the decision of the Commissioners would have been anything other than

to transmit the papers to the Director of Public Prosecutions with a recommendation that

there be no prosecution. However, strictly speaking, even as of the 27th May, those further

steps remained to be completed.

(ix) The Tragic Death of Sgt Galvin

10.54 In the early hours of the 28th May the body of Sgt Galvin was discovered in

Ballyshannon garda station at approximately 7.00 am. He had died as a result of what

appeared to be a self-inflicted gunshot. He had left a note which contained a suggestion

that the GSOC investigation had influenced his actions. As his death had occurred in a

61

garda station and as the weapon used was a garda issue firearm it was considered necessary

to refer the death of Sgt Galvin to GSOC under s.102 of the 2005 Act. This Inquiry is

confined to considering the conduct by GSOC designated officers during their

investigation into the events surrounding the death of Sheena Stewart. The potential

GSOC investigation into the death of Sgt Galvin is, therefore, outside those terms of

reference. However, some brief reference to what occurred is necessary to complete the

narrative. SIO Harden was the relevant senior officer on call. He immediately contacted

the DDI Wright. SIO Harden was aware, of course, of the fact that Sgt Galvin had been

the subject of a GSOC investigation and also became aware at an early stage that there was

a reference to the GSOC investigation in the note left by Sgt Galvin. For operational

reasons the matter was deemed to be a “critical incident” which defined the precise

procedures which were to be followed at a high level within GSOC. A decision was taken

that none of the GSOC officials who had been involved in the investigation into the death

of Sheen Stewart should be involved in the investigation into the death of Sgt Galvin. In

that context SIO Gareth Croke was nominated to be the senior investigating officer

involved. SIO Croke travelled to Ballyshannon and met with senior gardaí.

10.55 This led to one final aspect of the investigation into the death of Sheena Stewart

with which it is necessary to deal. In circumstances which will be shortly addressed

GSOC issued public confirmation of the status of the inquiry into the death of Sheena

Stewart and in particular the status of that inquiry insofar as it related to Sgt Galvin. It was

very clear from all of the evidence heard by the Inquiry that both the family and friends of

Sgt Galvin and also his colleagues in An Garda Síochána were extremely upset and

distressed by the way in which the matter was handled. I think it is also fair to record that

those GSOC officials who were involved at the time acknowledged that considerable

distress had been caused but suggested that they had been placed in a very difficult position

by events as they unfolded.

10.56 The Inquiry is mindful that it should not overstep the boundaries of its remit. As

noted earlier in respect of the process followed, it was accepted that the extent of the

Inquiry’s remit stopped short of inquiring into actions of the Commissioners themselves

but rather was confined to designated officers. In the same context it also requires to be

62

recalled that Ms Lorna Lee, who, as Head of Communications at GSOC, played a role in

these matters, is also not a designated officer and not, therefore, the subject of this Inquiry.

10.57 So far as this aspect of the Inquiry is concerned, therefore, the only issues relate to

the conduct of designated officers in the context of the issuing of statements and the like

concerning the status of the investigation under s.98 of the 2005 Act into the circumstances

surrounding the death of Sheena Stewart insofar as, in particular, same related to Sgt

Galvin.

10.58 However, in order to understand the precise issues which arise, it is necessary to

give, at least in brief and general terms, an account of the events as they unfolded.

10.59 It seems clear from the evidence that, very soon after Sgt Galvin’s death, the media

became aware of the fact that Sgt Galvin had been the subject of a GSOC investigation.

Some witnesses suggested that, at least from the time of Sgt Galvin’s funeral, there was

reasonably widespread information in the local community to the effect that Sgt Galvin

had been the subject of such an investigation.

10.60 Evidence was given by Ms Lee, GSOC Head of Communications, which the Inquiry

fully accepts, to the effect that there was a growing and extensive media interest in the story

over the next number of days. Furthermore, it seems clear that some entirely inaccurate

and fanciful rumours were doing the rounds. For example, there was one suggestion, which

was put to Ms Lee by a journalist, to the effect that Sgt Galvin had been involved in an

incident with a politician which was said to have formed the basis of the GSOC

investigation. Ms Lee, who is very experienced in her job, described the level and type of

queries which she was receiving as being unprecedented.

10.61 The Inquiry has no reason to suspect that any of the queries addressed to GSOC by

members of the media were anything other than based on information received by the

journalists concerned. However, if that be so it follows that at least some of those who

were giving information to the media were either grossly ill-informed or were engaged in

pure speculation or even mischief making. There was, therefore, a significant risk of the

story developing and, potentially, matters being published which were far from the truth.

The evidence of all those involved on the GSOC side was that there was genuine concern

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that there might a problem about the types of stories which might be published in the

context of a matter which seemed to be attracting quite significant attention. It would also

be naïve not to acknowledge that GSOC’s own involvement was a matter which had the

potential to lead to significant adverse publicity for GSOC itself. This aspect also had to

be handled by GSOC and must have informed GSOC’s actions

10.62 In the run up to what was a bank holiday weekend a decision was taken involving

principally Commissioner Fitzgerald, DDI Wright and Ms Lee which set out a strategy for

dealing with any potential publicity. While it is outside the scope of this Inquiry to

investigate the reasonableness or otherwise of that decision, the Inquiry feels that, in

fairness, it should record that the strategy devised does not seem to have been unreasonable

in all the difficult circumstances of the case.

10.63 The first leg of the strategy was to attempt, to the extent that it should prove possible,

to prevent the story gaining prominence. Ms Lee gave evidence, which the Inquiry accepts,

that it had proved possible in the past, particularly in cases involving personal or tragic

circumstances, to, as it were, “put a lid” on a particular story. Given the level of interest on

this occasion there may well have been some doubt as to how successful such a course of

action might be and with that in mind a fall-back position was agreed. Essentially the fall-

back position involved authorising Ms Lee to issue a public statement and, if necessary and

appropriate, to answer direct queries from members of the media, in the event that the

story developed in a way which made it likely that there would be significant publicity. At

the same time it was agreed that, should it prove necessary to implement that fall back

strategy, interested parties would need to be informed including the Galvin family and,

indeed, the family of Sheena Stewart.

10.64 In fairness to all, the Inquiry feels it necessary to set out the rationale behind that

strategy. All of those involved on the GSOC side were, by that time, aware that the point

which had been reached in the investigation into the death of Sheena Stewart was that all

of those directly involved (including Legal Affairs who had been consulted) were of the

view that no prosecution should be brought. That matter was not, of course, in the public

domain. Indeed, no persons outside of GSOC would, at the time in question, have been

aware that, at least at an operational level, the investigation had concluded and that, subject

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to the production of formal reports, a formal decision of GSOC, and the view of the DPP

being obtained, it seemed almost inevitable that there would be no prosecution.

10.65 However, the concern was that there would be publication of the fact that Sgt Galvin

was under GSOC investigation and, perhaps, that at least some of the speculation as to the

basis of that investigation might find its way into the public domain. The concern

expressed in evidence by the relevant GSOC personnel was that GSOC might be the

subject of legitimate criticism if it were to transpire that it stood mute in the face of publicity

concerning the fact that Sgt Galvin was the subject of a GSOC investigation when GSOC

knew that, to a very large extent, that investigation had completed, subject to what were

likely to be formalities, in a manner wholly favourable to Sgt Galvin. It seems to the Inquiry

that that was a legitimate concern. If things had turned out differently and a decision had

been taken not to make any comment and if it had transpired, as it seems likely would have

happened, that there was significant media comment on the fact that Sgt Galvin had been

the subject of a significant GSOC investigation and, quite possibly, speculation as to the

basis of that investigation, but that, at the same time, GSOC were aware that, at least at an

operational level, a provisional decision not to prosecute had been taken, the very fact that

GSOC made no comment might itself be the subject of this Inquiry and be the subject of

significant criticism.

10.66 It should be pointed out that the making of a statement of the type which was

ultimately made was unprecedented. It is not in accordance with GSOC’s normal practice

to issue statements about the status of inquiries. However, the situation, as it appeared on

the bank holiday weekend in question, was itself unprecedented. There was a risk that

there could be publicity adverse to Sgt Galvin’s good name in circumstances where

operationally GSOC had decided that he should not be prosecuted. In those

circumstances, and unless the first leg of the strategy of attempting to keep the story out

of the media was successful, it was at least a legitimate judgment call to take the view that

making a statement was the least bad option.

10.67 In the events that happened it became clear on 1st June, 2015 that the story was likely

to break in that Greg Harkin, a journalist from Northern Ireland who at that stage was

working for the Irish Independent, contacted Ms Lee in circumstances which led Ms Lee

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to consider, reasonably in the Inquiry’s view, that the story was going to break. It was

decided to implement the alternative strategy. The Inquiry should reiterate that Ms Lee’s

conduct is outside the scope of its remit. In the course of conducting the Inquiry, contact

was made with Mr Harkin who drew the Inquiry’s attention to his description of events as

published in the Irish Independent on the 2nd June, 2015. There are some differences in

detail between that description and the evidence given by Ms Lee as to precisely what

passed between her and Mr Harkin in the course of their dealings on the occasion in

question. However, precisely because Ms Lee’s conduct is not under scrutiny, it is

unnecessary to resolve those issues. Suffice it to say that information was given to Mr

Harkin which confirmed that Sgt Galvin had been the subject of an investigation but also

gave some information concerning the status of that investigation.

10.68 Soon thereafter a formal statement was issued in the following form on the 2nd June,

2015:-

“There have been media reports about the death of Sergeant Michael Galvin in Donegal last week.

We believe that it is important to clarify matters in relation to the GSOC investigation into his

death and his involvement with GSOC prior to his death.

Sergeant Galvin is not, nor was he ever, the subject of a complaint to GSOC.

The sergeant was interviewed in the context of a fatal incident on 1 January 2015, which was

referred by the Garda Síochána to GSOC for investigation, because the law provides for GSOC

to investigate, where there has been garda contact with a person prior to death or serious harm

occurring. This is a routine occurrence and it should not be automatically assumed that there is

garda misconduct in such cases that are referred to GSOC.

Sergeant Galvin was interviewed about the incident on the afternoon of 20th May.

GSOC’s investigation concluded the following week and found no evidence of a criminal offence or

a breach of discipline by any garda member. It is unusual that GSOC would share its findings at

this point in the process, but given these exceptional circumstances we believe that it is appropriate.

GSOC does not make a decision as to whether either criminal charges or disciplinary sanctions are

brought against a person; our role is to conduct an investigation and forward the file to the DPP,

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where appropriate, and to the Garda Commissioner, for decision. This is the stage that case is at:

the investigation has concluded and a file is being prepared for the DPP, which is normal where

the original incident involved a fatality. It is standard procedure that all garda members affected

and the Garda Authorities would be updated to this effect. They would later be updated as to the

decision of the DPP.

We are satisfied that our interaction with Sergeant Galvin during the investigation was

proportionate and reasonable. Nevertheless, in light of what has happened and of the concerns of

his family, we will be arranging a peer review of the investigation.

The current investigation into his death, which was also referred to GSOC by the Garda Síochána,

will also be subject to peer review, given that this agency was in contact with Sergeant Galvin prior

to his death.

GSOC has reciprocal arrangements in place with other police oversight bodies for such eventualities

and we believe that this is the most appropriate review mechanism in these circumstances.

We wish to extend our deepest sympathies to Sergeant Galvin’s family, friends and colleagues at

this very sad time.”

10.69 In accordance with the original strategy, an attempt was made at the same time (being

on the 1st June, 2015) to contact the Galvin family. In this regard DDI Wright requested

SIO Gareth Croke to contact the Galvin family. SIO Croke attempted to contact Supt

Colm Nevin, in order for the Supt to explain matters to the Galvin family. There were

several failed attempts to get in contact with Supt Nevin on the telephone and eventually

it appears that Chief Supt McGinn was reached by telephone by SIO Croke later that

evening.

10.70 It should be recorded at this stage that it had been made clear, through garda

channels, to GSOC that the Galvin family would not welcome any direct contact from

GSOC or its officers at the time in question. Given the fraught situation in which the

Galvin family found themselves at that time the position which they adopted was, of

course, more than understandable. An offer had been made that senior GSOC personnel

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(including, if appropriate, a Commissioner) would meet with the Galvin family but, having

taken some time to consider that offer, it was indicated that the family would not welcome

such a contact at that time. It follows that the attempts made by SIO Croke (on the

instructions of DDI Wright) to contact the Galvin family were necessarily directed through

An Garda Síochána. It should also be recorded that there was a mass organised on the

evening in question at the Garda Station for the colleagues of Sgt Galvin. The fact that

Supt Nevin was involved with such matters on the day in question may well have

contributed to the difficulty in making contact. There is, however, no doubt from the

evidence of the relevant mobile phone records that serious attempts were made to contact

An Garda Síochána for the purposes of conveying the appropriate information to the

Galvin family.

10.71 It seems to the Inquiry to be particularly unfortunate that the information which was

published by GSOC came to the Galvin family and, indeed, the friends and colleagues of

Sgt Galvin, in the manner in which it did and that, in particular, a considered and accurate

account of what GSOC wished to say was not clearly communicated to the Galvin family

before they heard a version of the information from other sources. The distress which that

caused was undoubtedly genuine and significant. It may well also be that the way in which

the information came out at that time contributed to some of the misunderstandings

concerning what actually happened which has already been commented on such as the

view, which seems to have been held by quite a few of those involved, that there was a

letter clearing Sgt Galvin sitting, unposted, on a desk.

10.72 However, so far as the actual issues with which the Inquiry is concerned, the only

issue, to which it will be necessary to return, is whether any designated officer could be said

to have been at fault in causing or contributing to that state of affairs. As already noted

the Inquiry believes, in any event, that the decision to adopt a strategy which would involve,

should it prove necessary, communicating information to the media, was reasonable. The

inquiry has already noted that the sequencing of events whereby media statements were

made before, as a fact, the Galvin family were informed, was most unfortunate and led to

great distress and, indeed, may well have contributed to some material misunderstanding.

The issue which will need to be considered is whether any fault can be attributed to any

designated officer in respect of that sequencing question.

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PART IV – ISSUES FOR RESOLUTION

(11) The Approach

(i) The Standard or Basis of Review

11.1 One of the issues raised by Counsel on behalf of GSOC as to the proper approach

of the Inquiry in compiling its report was as to the standard or basis by reference to which

the conduct of individual GSOC designated officers should be reviewed.

11.2 In that context it should be noted that the legislation is silent as to the precise nature

of the report which a judge nominated to conduct an inquiry under s.109 should submit to

the Minister. Section 109(1) specifies that the judge is required to inquire “into the conduct

of a designated officer in performing functions under s.98 or s.99” of the Act. Subsection

(3) specifies that the relevant judge’s terms of reference are to be included in the request

which the Minister sends to the Chief Justice to invite a judge to inquire. Thus the

parameters of the Inquiry are defined by those terms of reference and the fact that the

Inquiry must be into the conduct of a designated officer in performing functions in respect

of a criminal investigation. All that the legislation says about the report is that the judge

“shall report its results” to the Minister where the “its” refers to the Inquiry. Obviously

the report must be confined within the parameters of the terms of reference but, subject

to any question or issue arising legitimately within those terms of reference, the Act does

not appear to place any limitation on the manner or scope of the report.

11.2 In that context it is appropriate to note a significant difference between the way in

which the legislation approaches an inquiry conducted by GSOC into the conduct of a

member of An Garda Síochána, on the one hand, and an inquiry conducted by a judge,

under s.109, into the conduct of a GSOC designated officer, on the other. GSOC’s role

is, at least generally, focused on whether either criminal behaviour may be disclosed (leading

to the matter being referred to the DPP to consider the possibility of a criminal

prosecution) or whether conduct worthy of disciplinary action may be disclosed (leading

to the matter being referred to the garda authorities to instigate the appropriate disciplinary

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procedures). It is true that, in the course of evidence, GSOC made clear that there might

well be occasions where some general or systemic recommendations were made as a result

of a GSOC investigation, whether instead of or in addition to specific findings about an

individual member of An Garda Síochána, which might, potentially, lead to either criminal

or disciplinary proceedings. Obviously the Oireachtas did not think it appropriate to

specify, in respect of a judicial inquiry under s.109, that the judge concerned deal specifically

with either disciplinary or criminal matters. Clearly if evidence were disclosed which led to

a reasonable basis for contemplating a criminal prosecution then it would be appropriate

for the report to raise that question and suggest that the matter be referred to the

appropriate authorities for further consideration as to whether a criminal prosecution

should take place. Likewise a judicial inquiry might conclude that there was a basis for

suggesting that GSOC’s disciplinary machinery might be instigated in relation to the

conduct of a particular designated officer. However, it seems to this inquiry that the remit

of a judicial inquiry under s.109, insofar as its report is concerned, is wider. What the

Inquiry is required to do is simply to report the results of the Inquiry.

11.3 That being said it does seem to the Inquiry that there should be clarity about the

standard by reference to which the conduct of designated officers of GSOC should be

reviewed. Counsel for those GSOC designated officers involved suggested that the

standard ought be equivalent to the standard applied in judicial review proceedings before

the courts. However, it is important to identify that judicial review proceedings are

concerned with whether actions are lawful. Persons may be mistaken, and indeed culpably

mistaken, in their actions without necessarily breaking the law. The Inquiry is not,

therefore, satisfied that a standard taken by analogy with that applied in assessing the

lawfulness of the actions of public officials is appropriate.

11.4 On the other hand there are many situations in which reasonable and competent

persons may take a different view of a situation. It follows that there are many situations

where there are a range of possible responses or decisions which a competent person may

take in the light of the circumstances then known. It would be wrong to be critical of an

individual simply because someone else might have made a different decision. It follows

that where a decision or action taken by a GSOC designated officer falls within the range

of actions or decisions which could reasonably have been taken in all the circumstances

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known at the time in question, no personal criticism could or should properly be directed

to the officer concerned.

11.5 However, that may not necessarily be the end of the matter. There may, of course,

be cases where it will be hard to be critical of a particular decision made on the basis of the

information then available but where questions may be raised as to whether further

information should not have been available or should have been obtained. Likewise

persons may follow an established practice which, with the benefit of hindsight, might be

one which ought be reviewed. In such circumstances it may be difficult to be individually

critical but it might be nonetheless necessary to recommend a change in practice.

11.6 It seems to the Inquiry to follow, therefore, that personal criticism should only be

made of individual designated officers where the Inquiry is satisfied that an action or

decision taken by the officer concerned was outside the range of the actions or decisions

which could reasonably have been taken by a competent officer in all the circumstances of

the case. In that context issues of fact should be determined on the balance of probabilities.

11.7 However, even where personal criticism may not be appropriate, an inquiry under

s.109 should, where appropriate, report on any more general issues which appear to be

relevant arising out of the circumstances investigated in accordance with its terms of

reference.

11.8 Two final observations seem appropriate. It may well be possible to identify

circumstances where, in the Inquiry’s view, a particular course of action or decision was

mistaken in the sense that it should not have been taken in all the circumstances of the case

but where, nonetheless, the Inquiry feels that those circumstances are such that it would

not recommend that any personal action be taken in respect of the individual concerned.

There is clearly a difference between a mistaken view or error of judgment, on the one

hand, and conduct which might merit action, on the other. The Inquiry is mindful of that

distinction and will apply it when considering the individual issues to which it will be

necessary to turn.

11.9 First, the Inquiry is also mindful of the submission made by Counsel for the GSOC

designated officers which drew attention to the fact that this inquiry has been focused on

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a single GSOC investigation. On that basis counsel cautioned against the Inquiry drawing

overbroad conclusions and, thus, making overbroad recommendations in the light of the

facts of a single case. There is merit in that point and the Inquiry has taken it on board.

However, it does seem to the Inquiry that there are two bases on which it is, nonetheless,

appropriate to consider whether more general recommendations should be made. First, as

will appear from the facts which are uncontroversial and, more directly, from the analysis

of some of the specific issues which have arisen and which require consideration, much of

what was done in the circumstances of this case appears to have been general practice. In

quite a number of respects the evidence was that GSOC designated officers followed

general practice. There were very few instances where there was even a suggestion that

what was done might have been significantly outside the parameters of that which was

considered normal. It follows that, in the circumstances of this case, general practice within

GSOC comes into much greater focus than might be the case in other circumstances where

what occurred was clearly unorthodox or unusual.

11.10 Secondly, it seems to this inquiry that it would be failing in its obligation to report

fully to the Minister if it did not identify issues of more general concern which might merit

further consideration by the relevant authorities. It is almost inevitable that an inquiry of

this type will identify such issues. Not to report on them would seem to be a waste of the

resources put into an inquiry such as this. However, in the light of the danger identified

by counsel, it is the Inquiry’s intention not to make definitive recommendations concerning

the precise detail of the solution to any generic or systemic problems which the Inquiry

feels have been identified. Rather, the Inquiry’s intention is to identify the problem and

suggest that detailed consideration be given by those directly involved to the production of

new or revised guidance, protocols, practices or the like, designed to remedy the problem

identified. To fail to report on problems identified and suggest that action be taken to

provide solutions would be to fail to report properly. However, to attempt to provide a

detailed solution to those problems in the light of the experience of having investigated a

single case would be as likely to produce a solution which might make matters worse rather

than better.

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(ii) The Scope of the Inquiry:

11.11 The Inquiry sought submissions from the interested parties on the scope of the

Inquiry’s remit, on two principal issues.

11.12 First, a jurisdictional question was raised by legal representatives of the designated

officers of GSOC as to whether the initial decision to designate the investigation under

s.98 of the Garda Síochána Act 2005 fell within what is contemplated in s.109 of the Act.

Following written and oral submissions from the interested parties the Inquiry was of the

view that the principal intention of the legislature in enacting s. 109 of the Garda Síochána

Act, 2005 was to provide oversight in respect of the exercise by designated officers of

GSOC of the police powers conferred upon them in the context of s.98 investigations. It

was the Inquiry’s view that an interpretation of s. 109 which precluded a judge appointed

to conduct an inquiry under that section from considering the circumstances in which a

decision was taken to commence an inquiry under s. 98 would result, in the words of s.

5(1)(b)(i) of the Interpretation Act, 2005, in an interpretation which failed to reflect the

plain intention of the Oireachtas.

11.13 Second, the Inquiry invited submissions on the question of whether it is within the

Inquiry’s remit to make recommendations as part of the report. Legal submissions were

made by all parties on this issue in the course of written and oral submissions. Submissions

on behalf of the designated officers resisted the making of recommendations, primarily

suggesting that it might be unwise to base recommendations of a general nature on the

evidence concerning one particular investigation. It was submitted by Counsel for the

designated officers that where there was accepted to have been some confusion in the

instant case (particularly in relation to the taking of statements), this does not appear to be

typical generally and warned against a phenomenon of a potential danger arising in basing

recommendations on a single case where a practice which is used generally does not

generally seem to cause confusion. 11.14 Written submissions made on behalf of the

extended Galvin family conclude with the expression of a desire that all parties can learn

from the Inquiry how such investigations can be improved. Counsel for the extended

Galvin family referred to the wording of s.109 "On completing the Inquiry the appointed Judge

shall report its results to the Minister who shall forward a copy of the report to the Ombudsman Commission

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for such action as it considers appropriate in the circumstances. " It was submitted that this suggests

a conclusion or an outcome and that nothing in the legislation suggests that results cannot

include recommendations and that given the nature of a Section 109 inquiry the report

should include recommendation if the Inquiry were so minded to make them. Submissions

made by An Garda Síochána invited such a course, stating that there are no restrictions

imposed by statute on the contents of a report envisaged under s.109 and that the report

would unnecessarily be shorn of some of its worth and utility if it did not contain

recommendations. It was submitted that s.109 provides for a novel statutory function

which gives significant latitude, and that by comparison an Inquiry as contemplated under

the Commissions of Inquiry Act, 2004, would have a narrower focus. Counsel for An

Garda Síochána submitted that there was no apparent basis in the Act for limiting what the

report could contain and as the report must be sent to the Ombudsman Commission to

do with what they see fit, the Act itself seems to suggest that the contents of the report

may be acted upon. In light of that it was submitted that there necessarily follows that

there should be a power to make recommendations.

(iii) Preliminary:

11.15 As noted in Part II, the Inquiry initially identified seven issues which might require

resolution. For the purposes of this part of the Inquiry’s report the issues have been

reduced to five. That reduction has occurred for two reasons. First it is proposed to deal

with issues III and IV of the issues originally identified together. These are dealt with in

subs. (iii) of this part. The issues concerned are the question of the extension of the GSOC

investigation to include possible offences concerning making false and misleading

statements or perverting the course of justice together with the decision to conduct

interviews with Sgt Galvin and Gda Clancy in respect of those offences under caution. In

the way in which the evidence and submissions before the Inquiry developed it became

clear that those two issues were very closely linked and the Inquiry ultimately considered

that it would be easier to deal with both of them together rather than separately.

11.16 The second reason for a reduction in the number of issues to be addressed stems

from the fact, as already identified, that the Inquiry has previously concluded that there was

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no basis for reaching any adverse conclusion in respect of any GSOC designated officials

in relation to the manner in which the interviews under caution of either Sgt Galvin or Gda

Clancy were conducted.

11.17 In fairness to all concerned, it is appropriate that the basis for the Inquiry coming to

that view is clearly set out. The following points require to be recorded:-

11.18 There were significant differences between the way in which the interview under

caution of Sgt Galvin, on the one hand, and Gda Clancy on the other, progressed. While

both made an initial statement Gda Clancy was, in the main, happy to answer any further

questions which the relevant GSOC officers wished to put to him. On the other hand Sgt

Galvin indicated that he did not wish to answer any further questions. That significant

difference between the two interviews was, it must be recorded, as a result of, and in respect

for, Sgt Galvin’s wishes and did not reflect any difference of approach on the part of the

GSOC officers. It is clear that questions broadly along the same lines as those which were

put to Gda Clancy were intended to be asked of Sgt Galvin had he indicated a wish to

answer same.

11.19 The Inquiry heard evidence both from Gda Clancy and his solicitor who attended

at the interview with him. Both described the interview as having been conducted in a

professional manner. Unfortunately, and tragically, the Inquiry could not, of course, hear

from Sgt Galvin himself but his solicitor, who attended the interview with him, likewise

did not indicate that the interview was conducted in anything other than a professional

manner.

11.20 The Inquiry did hear evidence of certain comments made by Sgt Galvin as a result

of discussions with Gda Clancy at a time after Gda Clancy had been interviewed but before

he, Sgt Galvin, was interviewed and also of further comments made after Sgt

Galvin’s own interview. As a result of conversations with Gda Clancy at the earlier stage

it would appear that Sgt Galvin came to the view that it was necessary for Gda Clancy’s

solicitor to intervene on a number of occasions in the course of the interview and that the

interview generally had been difficult. The evidence did not support the view that the

interview with Gda Clancy was anything other than prodessional. The “interventions”

question was explored in the course of the evidence of all those who were present at Gda

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Clancy’s interview. It seems to the Inquiry to be clear that what, in fact, occurred was that

Gda Clancy’s solicitor, on occasion, asked for time to consider certain materials which were

put to Gda Clancy in the course of interview. The evidence clearly establishes that Gda

Clancy and his solicitor were given as much time as they sought and needed. Insofar as

there might have been a suggestion that any intervention on the part of Gda Clancy’s

solicitor was necessary to prevent inappropriate questioning of Gda Clancy the evidence

makes clear that this was not so. Rather, the interventions were to seek appropriate

accommodation for Gda Clancy which accommodation was readily afforded. Subsequent

to his own interview a number of witnesses gave evidence of conversations with Sgt Galvin

which suggested that he had formed the view that GSOC did not want to listen to his side

of the story and reference was also made to the fact that the GSOC officers did not make

eye contact. It is impossible, at this remove, to make any specific findings as to precisely

what happened. However, it may well be that the eye contact issue derived from the fact

that the substance of the interview with Sgt Galvin simply involved him reading out a pre-

prepared statement where copies of that statement had also been provided to the GSOC

officers present and where, therefore, it may well have been that those officers were reading

the same statement as it was read into the record. As already noted, there was, at Sgt

Galvin’s request, no further questioning.

11.21 In the light of all of that evidence the Inquiry felt that there was no legitimate basis

for any suggestion that the manner of the conduct of the interviews with Gda Clancy or

Sgt Galvin was anything other than entirely professional. It will never be possible to tell

precisely why Sgt Galvin felt as he did after his interview. However, it does need to be

recorded, in that context, that all of the evidence suggested that Sgt Galvin had become

especially preoccupied by the matter and depressed as the time for the interview

approached.

11.22 The report will, therefore, now deal with each of the five remaining issues which

require to be resolved. In the context of each issue the report will set out the position

adopted by the respective interested parties before going on to set out the Inquiry’s

conclusions in respect of the issue concerned together with a summary of any

recommendations made.

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(12) The Issues

(i) The initial decision to designate an inquiry under s.98 of the 2005 Act which was made on the 1st

January, 2015

(a) Submissions on behalf of the interested parties:

12.1 A s.102 referral was made on 1st January, 2015 by Supt Finan to SIO Harden. Later

that day it was decided to designate the investigation as a s. 98 investigation under the 2005

Act.

12.2 The principal submission both of Counsel for the extended Galvin family and of

Counsel for An Garda Síochána was that the designation of the investigation in question

as one to be carried out under s. 98 of the 2005 Act was inappropriate and incorrect for a

variety of reasons. The designation of an investigation by GSOC officers as a s. 98

investigation confers certain police-type powers on those officers which would not

otherwise be available to them. It was submitted by both of the above interested parties

that, on a proper interpretation of ss, 91, 95, 98 and 102 of the 2005 Act, in order for

GSOC to investigate a matter under s. 98 there must be prior consideration and assessment

of the circumstances surrounding the referral and a decision must be made by GSOC that

the conduct of a member or members of An Garda Síochána appears to constitute an

offence. Otherwise, it was submitted, the matter should be investigated under s. 95 or

discontinued under s. 93.

12.3 It was noted by Counsel for An Garda Síochána that, by virtue of s. 102 (3), the

provisions of Part 4 of the 2005 Act, with necessary modifications, apply to a referral under

s.102 “as if the matter were the subject of a complaint referred to in s. 91”. Accordingly it

was argued that, as per s. 91, there should be an examination of the referral for the purpose

of recommending whether the matter should be investigated under s. 95 or s. 98 or

discontinued under to s. 93. It was submitted that the legislative scheme requires a proper

consideration of the matter and the proper exercise of a statutory decision making power

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rather than what was said to be the automatic adoption of a policy or position of

designating all s. 102 referrals (or such referrals involving death) as s. 98 investigations.

Indeed it was submitted that the testimony before the Inquiry indicated that the approach

of GSOC was that all s. 102 referrals which are investigated by GSOC (i.e. which are not

discontinued under s. 93 of the Act) in effect inevitably become s. 98 investigations. It was

submitted by An Garda Síochána that this practice and understanding by GSOC is at odds

with the scheme of the 2005 Act which was said not to suggest a presumption in favour of

one form of investigation or the other.

12.4 In addition, Counsel for the extended Galvin family suggested that the legislation is

somewhat silent as to the test to be applied by a designated officer in determining whether

there should be a s. 95 or s. 98 investigation. Section 95(1) states:

“if the Ombudsman Commission decides to investigate a complaint about conduct that does not appear

to constitute an offence…”

12.5 Accordingly, it was submitted that the correct test to apply was to ask whether

there was “an appearance of an offence”, as opposed to whether there “may have been

an offence”. It was submitted that an appearance of an offence suggests a readily

identifiable offence and a requirement of some evidence to suggest that the identifiable

offence occurred. Consequently, it was submitted that GSOC officers appear to be

incorrectly applying the statutory test when designating investigations under s. 98.

12.6 Counsel placed particular reliance in that regard on the evidence which suggested that

in almost all cases (with one possible exception) where a formal investigation (rather than

a discontinuance) had resulted from a s.102 referral, the investigation was designated as a

s.98 criminal investigation rather than a s.95 disciplinary investigation.

12.7 On this issue it was noted by Counsel for GSOC that the legislation does not set

out a specific test in positive terms. For example, the 2005 Act does not say, “ a section

98 investigation shall be commenced when…” and then define the relevant

circumstances. Instead, it was submitted, that it is necessary to engage in a close reading

of ss 91, 95 and 98 to ascertain the position, and “unfortunately these provisions do not

yield up total clarity.” It was further noted that s. 95 provides a negative test for when

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a criminal investigation should be commenced. It is suggested that the legislation could

be interpreted to mean that one commences a s. 95 investigation only when a section

98 investigation has been ruled out. It was further submitted that the word “appears”

does not assist in establishing what appropriate factual threshold needs to be ruled out

or in before a s. 95 or s. 98 investigation is commenced. Counsel for GSOC submitted

that the appropriate test is that of whether the designated officer had reasonable

grounds for considering that an offence may have been committed and that the GSOC

understanding, and that of DI Isaac, was that an offence “may” have been committed

in this case. The context of the decision was also highlighted in that a designation

decision is made on the ground, operationally, and not as an abstract legal decision.

Some reliance was also placed on the need, in certain circumstances, for police powers

if evidence which might potentially be relevant to a possible future prosecution were

not to be lost.

12.8 In reply on that topic both Counsel for the extended Galvin family and Counsel for

An Garda Síochána submitted that the consideration of policing powers was not something

that should have been considered and the factor of “policing powers” was a wholly

inappropriate consideration on the part of SIO Harden.

12.9 Counsel for the extended Galvin family also submitted that there was an inadequate

examination under s. 91 of the Act to determine whether an investigation should be carried

out under s. 95 or s. 98. It was submitted that the examination was, at best, a cursory

evaluation of the situation prior to a recommendation and designation being made. In that

context the fact was highlighted that SIO Harden based his recommendation on a

telephone call he received from Supt Finan, which took no more than 10 minutes and

possibly just five minutes. SIO Harden had not attended at the scene of the RTA nor was

he in Donegal at the time. Within 25 minutes of Supt Finan making the referral under s.

102, DI Ken Isaac, on the recommendation of SIO Harden, designated the investigation a

s. 98 investigation.

12.10 Counsel for GSOC, contended that both DI Isaac and SIO Harden acted in the utmost

good faith; DI Isaac in designating the investigation as a s. 98 investigation, and SIO Harden

in making his recommendation to DI Isaac. It was said that their decisions were based on

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information which had been provided by Supt Finan. It was submitted by GSOC that a

number of factors properly influenced the decisions in question. These were:

12.11 The fact that a Superintendent had taken a view that the s. 102 test had been met. In

this regard it was submitted that what was significant was the fact that an officer of the

senior rank of a Superintendent was placing before DI Isaac facts which the

Superintendent himself considered to be reliable; The actual facts as relayed to SIO

Harden; Article 2 of the European Convention on Human Rights. In this regard it was

submitted that each Contracting State under the ECHR has a positive obligation to

conduct an effective and official independent investigation where there is a death

following “on duty police contact” and it was stated that this obligation is taken

seriously by GSOC. Where there is a death following police contact, this is always

considered potentially to engage Article 2 of the ECHR; The fact that this case involved

a death.

12.12 In reply it was submitted by both Counsel for an Garda Síochána and Counsel

for the extended Galvin family that these factors do not bear scrutiny. In particular it

was suggested that:

12.13 The fact that a Superintendent made a referral is present and applicable in all s.

102 referrals and cannot be relevant to the subsequent decision to be made as to

whether s. 98 or s. 95 is the appropriate vehicle; The facts relayed were not such that

could lead to any basis for considering that the conduct of the relevant gardaí, through

their interaction with Ms Stewart, appeared to constitute any criminal offence, still less

the offence of misconduct in public office; In relation to Article 2 ECHR the view was

expressed that it cannot be the position that, in every case where there is a death, Article

2 mandates a s. 98 criminal investigation. It was submitted that such an interpretation

of the legislative provisions is not mandated in order to comply with the provisions of

the ECHR.

(b) The Inquiry’s Findings:

12.14 As noted earlier, a decision was made on the 1st January, 2015 by Supt Finan to refer

issues arising out of the death of Sheena Stewart to GSOC under s.102 of the 2005 Act.

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As also noted earlier, a decision was taken on the same day by appropriate GSOC officials

to designate the investigation as being one under s.98 of the 2005 Act.

12.15 The designation of an investigation as being one to be conducted under s.98 carries

with it certain police type powers which are conferred on those GSOC officers who may

become involved in the investigation. Without the designation of the inquiry as being one

to be conducted under s.98 those powers are not available.

12.16 It must be noted that an investigation under s.98 involves a criminal investigation.

It will be necessary to consider the precise wording of the relevant legislation in due course.

However, it would appear that, in general terms, it must be necessary that there be at least

some sufficient basis for considering that it is appropriate to conduct a criminal

investigation in order that it also be appropriate to designate the investigation as being one

to be conducted under s.98 of the 2005 Act. In reality, much of the difference between the

parties concerned the precise threshold which should be applied before an investigation

should be designated, or properly be designated, as a s.98 investigation, together with the

application of whatever threshold might be appropriate to the circumstances of this case.

12.17 As noted earlier the submission made on behalf of both the extended Galvin family

and An Garda Síochána was that there must be a sufficient prior consideration and

assessment of the circumstances surrounding the referral such that it must appear that the

conduct of a member of An Garda Síochána (or, of course, a number of such members)

constitute an offence in order that an investigation can properly be designated as a s.98

investigation. In like vein, it was also submitted that, in the absence of it appearing that an

offence may have been committed, the matter should either be investigated under s.95 of

the 2005 Act (which involves disciplinary matters), or should be discontinued under the

provisions of s.93.

12.18 The starting point has, therefore, to be a consideration of what the legislation itself

says. It seems to the Inquiry that the legislation in this regard is less clear than it might be.

One of the difficulties stems from the fact that there are, in reality, a number of different

ways in which a matter may come within the remit of GSOC. The legislation is drafted in

a way which deals in detail with how GSOC is to consider complaints made by members

of the public. However, as an alternative to an issue being initiated before GSOC by such

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a complaint, the referral of a matter to GSOC by An Garda Síochána, under s.102, provides

one of the other methods. Section 102(3) provides that a matter referred under that section

should, with any necessary modifications, be considered “as if the matter were the subject

of a complaint referred to in s.91”. In other words, this is an example of legislation by

reference where a regime is put in place for dealing with complaints and it is then sought

to apply that regime to a somewhat different type of circumstance being where a matter is

referred to GSOC by An Garda Síochána.

12.19 In that context, it is important to note that there can be a significant distinction

between the type of matter which may be the subject of a complaint, on the one hand, and

a reference, on the other. It seems unlikely that a person would make a complaint to An

Garda Síochána without it being the case that the complainant was at least asserting that

some member of An Garda Síochána had done something wrong. It may be that the

complaint might be considered to be inadmissible for one of a number of reasons. One of

the criteria for determining admissibility is to be found in s.87(2)(b) which requires that, in

order that a complaint be admissible, conduct is alleged which would, if substantiated,

constitute misbehaviour by a member of An Garda Síochána.

12.20 Misbehaviour is defined in s.82 as meaning conduct that constitutes an offence or a

breach of discipline. It follows that where a member of the public makes a complaint which

does not involve an allegation of some type of conduct which, if true, might constitute

either a disciplinary matter or a criminal offence, the complaint will be regarded as

inadmissible and will not be pursued further. Therefore, if the complaint is considered to

be admissible, it follows that what is alleged must, if true, arguably constitute either a

criminal offence or alternatively a matter which might be the subject of disciplinary

proceedings.

12.21 On the other hand, the pre-requisite for a reference under s.102 from An Garda

Síochána to GSOC is simply that it is indicated that conduct of a garda “may” have resulted

in the death or serious harm to a person. It was suggested by garda witnesses, correctly in

the Inquiry’s view, that in order for there to be a referral, the senior garda concerned (being

the garda to whom the Commissioner’s power to make a referral under s.102 has been

83

delegated) does not have to form the view that there was any culpability on the part of any

member of the Force. It is possible to envisage a whole range of circumstances where

entirely innocent conduct on the part of a garda may, unfortunately, lead to death or serious

injury. Even if, as was suggested by some of the evidence, senior gardaí may, to avoid any

suggestion of cover up, have become inclined to refer under s.102 in any case of doubt,

nonetheless the threshold for such a referral is low in any event.

12.22 It follows that, unlike in the case of an admissible complaint where there will be at

least a suggestion of wrongdoing, a referral may simply reflect the fact that there was a

sufficient causal connection between some conduct on the part of a member or members

of An Garda Síochána and a death or serious injury to warrant the making of the relevant

referral. It follows, in turn, that there is an initial additional consideration which arises in

the case of a referral (as opposed to a complaint) which is to find out enough about the

circumstances to determine whether there is any basis for suggesting that there was any

misconduct on the part of a member of An Garda Síochána at all (being conduct which

might, if it were ultimately to be established, constitute criminal misconduct or conduct

which might warrant the possibility of disciplinary proceedings).

12.235 A complaint concerning death or serious injury must, in accordance with s.87, be

considered to determine admissibility. If admissible, such a complaint must be examined

in accordance with s.91 to decide whether it is to be investigated under s.95 or s.98. Those

provisions are required (by s.102(3)) to be applied “with the necessary modifications” to a

referral under s.102. However, a referral may or may not, at least initially and in and of

itself, provide enough information to allow those assessments to be made. Applying the

complaint procedure to referrals is not, therefore, clear cut. A complaint without sufficient

information to constitute arguable wrongdoing, can be dismissed as inadmissible. A proper

referral need not, however, contain such information. The best that can be done is to

suggest that there must, therefore, be an implied obligation on GSOC to conduct a

preliminary inquiry or examination to obtain sufficient information to make the decision

required by analogy with ss 87 and 91.

12.24 In addition to that it has to be said that the legislation is somewhat opaque about

the precise basis on which a decision should be made as to whether to investigate under

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s.95 or s.98. Section 98 itself simply provides that, if a decision is made to investigate a

complaint under that section (and, in the somewhat convoluted way in which the legislation

is crafted, a complaint must, for these purposes, be taken to include a referral), then a

designed officer is given a variety of police powers. However, that is all the section says. It

is, in its terms, a power-conferring section rather than a section which sets out the purpose

for which those powers are to be exercised.

12.25 Section 95 suggests that “If the Ombudsman Commission decides to investigate a complaint

about conduct that does not appear to constitute an offence”, then various procedures are

to be followed.

12.26 Section 91 relates to complaints concerning the death or serious harm to persons “as

a result of garda operations or while in the custody or care of the Garda Síochána.”. Section 91 appears

to contemplate that GSOC should examine the complaint for the purposes of deciding

whether it should be investigated under s.95 or s.98 and makes provision for an appropriate

GSOC officer to make recommendations to the Commission and for a decision by the

Commission in that regard. So what s.91 provides for appears to be a two stage process.

First an examination of a complaint. Then a decision as to whether that complaint should

be investigated under either s.95 or s.98. It does not, in itself, provide for any criteria for

the decision relating to the section under which the complaint should be investigated.

12.27 It is also necessary to have regard to s.93(1)(c) which permits GSOC to discontinue

any investigation if “having regard to all the circumstances, the Commission considers that further

investigation is not necessary or reasonable practicable”.

12.28 It has to be said that it appears unfortunate that the legislation does not set out

clearly what is to happen in the event of a referral under s.102. The legislation provides

that what is to happen is that the procedure to be followed after a reference should be the

same as if there had been a complaint with “the necessary modifications”, but that does not

reflect the fact that there is, as noted earlier, a significant difference between a complaint

(which, if admissible, certainly involves an allegation or suggestion of culpability), and a

referral (which does not necessarily do so or, indeed, contain any allegation at all).

85

12.29 Also the initial function required to be carried out in respect of a complaint is, as

already noted, an examination of the complaint for the purposes of deciding whether it

should be investigated under s.95 or s.98. But s.102 (3) provides that it is the provisions of

that part of the Act relating to “investigations and reports” which is to apply by analogy to cases

referred under s.102. It must be presumed, although it could be clearer, that

“investigations”, as that term is used in the section, includes an “examination” for the

purposes of deciding on an appropriate designation for either criminal or disciplinary

investigation.

12.30 But, perhaps, one of the key difficulties with the legislation, which is brought into

focus in the context of the issues which have arisen in this case, is the fact that the

legislation provides no clear and express roadmap as to how a s.102 referral is to be handled

and, in particular, how the circumstances giving rise to the referral are to be examined for

the purposes of deciding whether they warrant any formal investigation at all, an

investigation under s.95, or an investigation under s.98.

12.31 Given those difficulties, it appears that the interpretation which has been placed on

the legislation by GSOC (which may well be the best that can be done in the circumstances)

is that a referral should initially be examined to see if there may be conduct which might

constitute misbehaviour disclosed. It would appear on the evidence that sometimes the

examination remains at that stage for quite some time and that, in the event that no such

conduct is disclosed, the matter may be discontinued under the provisions of s.93. The

phrase that appears to be used during the currency of such an examination (that is, an

examination which has not yet reached a conclusion as to whether there should be a formal

investigation at all and if so whether it should be under

s.95 or s.98) is that the matter has been “left in s.91”. The evidence also suggests, however,

that in the event that that initial examination does not lead to the conclusion that the matter

should be discontinued but that there should be a formal investigation under either s.95 or

s.98, it almost inevitably follows (there was anecdotal evidence that there may have been

one case to the contrary) that the investigation is designated under s.98, rather than s.95.

12.32 In other words, as a matter of practice, there appears to be a period of examination

to decide whether there should be any formal investigation at all. Sometimes that does,

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indeed, lead to the matter being discontinued without any formal investigation because the

preliminary examination does not disclose any basis for suggesting that there was

misconduct on the part of the gardaí. However, if the matter is not discontinued on that

basis, it seems to almost inevitably follow that there is a designation as a criminal

investigation, rather than a disciplinary investigation, although it must always be kept in

mind that the legislation does contemplate the possibility that a criminal investigation may

be, as it were, downgraded to a disciplinary investigation, if it should transpire that there

was insufficient evidence to warrant a criminal prosecution, but that there nonetheless was

evidence to warrant disciplinary procedures.

12.33 That brings into focus the distinction between a s.98 and a s.95 investigation. As

already pointed out, the practical consequence is that GSOC has, under s.98, powers closely

analogous to the powers which the gardaí would have in investigating a criminal offence.

GSOC does not have such powers in a s.95 disciplinary investigation. However, the only

clue in the legislation as to the distinction between the two types of investigation is to be

found in s.95 which specifies that that section applies in a case where GSOC is investigating

a complaint about conduct “that does not appear to constitute an offence”. It would, it has to be

said, be much better if the legislation set out in clear terms what the criteria were for a

decision to proceed with an investigation under s.98, but it is possible to infer that a s.98

investigation is to occur in cases where, to use a double negative, which seems to be

appropriate given the way that the legislation is drafted, it does not appear to GSOC that

relevant conduct does not appear to constitute an offence.

12.34 Part of the purpose of this somewhat detailed consideration of what seems to be

unnecessarily complex and opaque legislation is that the lack of clarity identified does form

part of the backdrop against which any decision taken by GSOC to designate an inquiry

under s.98 must be judged. That consideration applies, in particular, to the decision taken

in this case. However, what is clear is that a determination that an investigation should be

conducted under s.98 is an important decision carrying with it the conferring of significant

powers on GSOC. It follows that any such decision should be properly taken and should

only be taken where there is a legitimate basis for determining that the circumstances

warrant a criminal investigation. The legislation certainly suggests that the circumstances

must disclose at least some appearance of a possible offence.

87

12.35 On the other hand, it must be acknowledged that what arises under either s.95 or

s.98 is an investigation. The purpose of any investigation is to ascertain the facts and to

determine whether there is sufficient evidence to support, on the facts, either a criminal

prosecution or the commencement of a disciplinary process. It seems to follow that it could

not be considered necessary that there be evidence of either criminality or disciplinary

misconduct in order that an investigation be carried out. The whole purpose of an

investigation is to gather evidence. But there must, nonetheless, be a legitimate basis for a

decision to designate an investigation as one to be conducted under s.98. Making the best

of the legislation it seems, by analogy with the complaint procedure, that GSOC must have

conducted a sufficient preliminary examination of the circumstances giving rise to the

referral under s.102 to identify possible conduct which, if substantiated, would amount to

misconduct. In the absence of having identified such conduct, or possible conduct, then it

is hard to see how an investigation under either s.98 or s.95 could be justified. That situation

would be analogous to a complaint by a member of the public which would be regarded as

inadmissible as not disclosing an allegation of misconduct.

12.36 Where, however, the preliminary inquiry by GSOC discloses a suggestion of conduct

which, if substantiated, might amount to misconduct as defined, then a decision must be

taken as to whether that conduct can be said “not to appear to constitute an offence” (in which

case an investigation under s.95 ought follow), or otherwise (in which case an investigation

under s.98 would be justified). One of the problems is that, in the case of a complaint, the

conduct alleged will be specified in the complaint whereas, in the case of a referral under

s.102, GSOC has to conduct, at least to some limited extent, its own inquiries to ascertain

enough about the circumstances of the case to identify whether there is any suggestion of

conduct which might warrant statutory investigation under either of the sections.

12.37 It is in that context that the specific issues arising in the circumstances of this case

need to be considered. The key complaints made, both by Counsel on behalf of the

extended Galvin family and Counsel on behalf of An Garda Síochána., so far as this issue

is concerned can, in the Inquiry’s view, be grouped under three headings:

(a) A suggestion that the level of information available at the time when a

decision to designate an investigation under s.98 was made was insufficient

88

and that further examination or inquiry ought to have been conducted

before any decision was made;

(b) That, on the basis of the materials or information available at the time, there

was no sufficient basis for concluding that there was a legitimate justification

for instigating a criminal inquiry; and

(c) That many of the factors identified by GSOC witnesses as having informed

their decision were not matters which ought properly have influenced the

decision at all.

12.38 Against that backdrop it is appropriate to turn to the basis on which the

GSOC decision to designate was made.

12.39 It is necessary at this stage to restate the factors which GSOC suggested

justified a criminal investigation, which were:-

1. The fact that a Superintendent had taken the view that the s.102 test had been

met. In this regard it was submitted that what was significant was the fact that an

officer of the senior rank of a Superintendent had placed before GSOC facts which

the Superintendent himself considered to be reliable; 2. The actual facts as relayed

by the Superintendent to SIO Harden; and

3. Article 2 of the ECHR.

4. The fact that there was a death after Garda contact.

12.40 As already noted, each of the other parties contested the validity of each of

those items as a legitimate basis for a s.98 designation. It is proposed to deal

with those matters which are of more general application first before

proceeding to the specific facts of this case.

12.41 So far as points 3 and 4 are concerned, it is clear that there is a positive

obligation on each subscribing State to the ECHR to conduct an effective

and efficient independent investigation where there is a death following from

on duty police contact. The fact of a death in such circumstances would,

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independently of the ECHR and in any event, warrant a proper investigation.

It is said that GSOC, as a State Agency, is obliged to seek to comply with

Ireland’s obligations under the ECHR to conduct such an inquiry and that

this factor was, therefore, properly taken into account when considering

whether to designate the investigation under s.98 or s.95.

12.42 Article 2 of the ECHR provides as follows:

“1. Everyone's right to life shall be protected by law. No one shall be deprived of his life

intentionally save in the execution of a sentence of a court following his conviction of a crime

for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it

results from the use of force which is no more than absolutely necessary:

15 a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection.”

12.43 The European Court of Human Rights (“ECtHR”) first ruled on the question of the

relevant aspect of the right to life in 1995, in McCann, Farrell and Savage v. United Kingdom15,

which was a case brought by the relatives of three individuals shot by members of the SAS

in Gibraltar. The ECtHR considered the obligations imposed by Article 2 and held that

the first, and most obvious, obligation under article 2 is for the state, through its agents, to

refrain from itself causing the deprivation of life, that is to say that domestic law must

regulate the permissible use of lethal force by agents of the State. Importantly in the

context of this inquiry the ECtHR noted a further obligation imposed upon the State by

Article 2 being the obligation to conduct a full, open and transparent investigation into the

circumstances in which a public body may have taken a life. This should be public,

15 European Court of Human Rights, Judgment of 27 September 1995, Series A no. 324, p. 49, § 161

https://en.wikipedia.org/wiki/McCann_and_Others_v_United_Kingdom



https://en.wikipedia.org/wiki/Special_Air_Service

https://en.wikipedia.org/wiki/Special_Air_Service

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independent, effective and prompt. The investigation should involve members of the

family of the victims16.

12.44 This should be public, independent, effective and prompt. The investigation should

involve members of the family of the victims17.

12.45 The European Convention of Human Rights Act 2003 (“the 2003 Act”) gave further effect

to the ECHR in Irish law. The courts are thereby required to interpret legislation in line

with the ECtHR insofar as it is possible so to do and public bodies are required to perform

their functions in a manner compatible with the ECHR, unless precluded by law. In that

context s. 3 of the 2003 Act requires that, subject to any other provisions of domestic law,

'organs of state' must perform their duties in a manner compatible with the ECHR. Section

1 defines an organ of state as including any body through which the powers of the State

are exercised. That definition clearly includes GSOC.

12.46 Evidence was heard by the Inquiry from Michael O’Neill (formerly Head of the

Legal Affairs department of GSOC) that, in circumstances where death follows police

contact, GSOC considers that the ECHR requires that a number of criteria be met in

relation to the independent investigation of that death, not only in relation to the actions

of police officers but also systems around policing, to ensure the protection of life. He

outlined that that would be the rationale behind such an investigation by GSOC, and that

part of the reason for the establishment of GSOC would have been so that Ireland could

comply with its Article 2 obligations.

12.47 So far as Article 2 of the ECHR is concerned it seems clear both from

contemporaneous documentation and from the consistent evidence of GSOC officers that

Article 2 played an important part in the decision to designate a s.98 investigation in this

case. However, the Inquiry finds it difficult to see how Article 2 can provide a legitimate

basis for conducting a criminal inquiry as such. Either there is a sufficient basis to meet

whatever may be the appropriate threshold under the 2005 Act for a criminal investigation

16 (See also R (Amin) v S.O.S Home Dept) [2001] High Court, Administrative Court (England and Wales) 719,

5 October 2001) 17 (See also R (Amin) v S.O.S Home Dept) [2001] High Court, Administrative Court (England and Wales) 719,

5 October 2001)

https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

91

or there is not. If there is a legitimate basis to meet that threshold then Article 2 of the

ECHR does not add anything to the consideration. If there is not a legitimate basis for

meeting that threshold then Article 2 cannot provide a justification for conducting a

criminal investigation which was not otherwise justified.

12.48 It is clear that Article 2 does place an obligation on Ireland, as one of the countries

bound by the ECHR, to conduct the sort of inquiry which the jurisprudence of the ECHR

mandates in the case of death after on duty police contact18. It is also true that, under s.3

of the 2003 Act, all State agencies, and this includes GSOC, are required to conduct

themselves, if legally possible, in a way which conforms with Ireland’s obligations under

the ECHR. But the combined effect of both of those measures cannot be to give a

jurisdiction to GSOC to conduct a type of inquiry when it does not have that jurisdiction

in the first place. It was implicit in a significant amount of the GSOC evidence that there

was a feeling that, in the absence of having the sort of police powers which are conferred

in the context of a s.98 investigation, it might not prove possible to

18 See for example Salman v. Turkey, 21986/93, Council of Europe: European Court of Human Rights, 27 June 2000 and McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, § 86 conduct a sufficiently thorough investigation so as to comply with the requirements of

Article 2. Whether that is actually so is not a matter on which this Inquiry can express any

view. But even if that were to prove to be the case, same would not justify conducting a

criminal inquiry where there was no sufficient appearance of a criminal offence simply

because it was felt necessary to secure the powers which s.98 carries. In fairness, when that

point was put to a number of senior GSOC officials, they all agreed that Article 2 could

not be invoked simply because it might be felt that the powers contained in s.98 might

assist in an Article 2 compliant investigation of conduct which might have contributed to

a death. But given that admission it is very hard to see what role Article 2 could possibly

play in the decision to designate an investigation under s.98.

12.49 The Inquiry does not doubt that, once an investigation has been legitimately

commenced under s.98, Article 2 may well play an important role in defining the manner

in which that investigation should be carried out including, for example, the need to keep

relatives of a deceased informed. But the Inquiry fails to see how Article 2 could play any

92

legitimate role in a decision to designate a criminal investigation in the first place. It seems

to the Inquiry that, in some unspecified way, there appears to have been a view within

GSOC that Article 2 lent in favour of a criminal investigation precisely because of the

powers that came with it. Unless that were so it is very hard to see how Article 2 could

have played any legitimate role in the decision to designate under s.98 at all. Yet all of the

GSOC documentation, as well as witness statements and evidence, made clear that the

designated officers on the ground at the time considered Article 2 to play a material role.

12.50 In that context the Inquiry is of the view that GSOC designated officers generally


Article 2 of the ECHR to colour their view on whether it was appropriate to conduct a

criminal investigation. The Inquiry is satisfied that each of the officers involved in this case

acted bona fide in the belief that it was appropriate to take Article 2 into account, but is also

of the view that those officers were mistaken in that view.

12.51 It is next necessary to turn to point 1 being the fact that the matter had been referred

under s.102 by a Superintendent was taken into account. In that context, it was argued, in

particular by Counsel on behalf of An Garda Síochána., that such a consideration could

not properly be a factor for it was present in every case.

12.52 While that argument is true so far as it goes, it does seem to the Inquiry that it is,

nonetheless, legitimate for a GSOC designated officer to take the fact of a referral into

account as part of an overall assessment. One of the questions which it might be necessary

to ask in deciding whether there is a sufficient appearance of a possible criminal offence

present in any case is as to whether it appeared that there was a causal link between certain

possible or alleged conduct on the part of members of An Garda Síochána and the death

or serious injury of an individual. Such a causal link would not, of course, be sufficient to

rule out the absence of an appearance of a criminal offence for there would have to be

more in that the conduct concerned would also have to appear to be culpable in a criminal

way. But that causal link may be a necessary, if not a sufficient, element of the equation. It

is also clear that, under s.102, the relevant Superintendent (acting on the delegation of the

Commissioner) must, before referring, come to the view that conduct may have caused the

relevant death or serious harm. Thus, the Superintendent must have been satisfied that

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such a causal link may have been present. The fact that a senior police officer on the ground

at the time in question was required, as a condition of making the referral in the first place,

to have been satisfied about the possibility of that causal link is a factor which can, in the

Inquiry’s view, properly be taken into account.

12.53 However, as already noted, it is clearly not, in itself, sufficient precisely because a

superintendent concerned could quite properly make a referral even though that

superintendent did not consider that any of the conduct in question was culpable even to

a disciplinary, let alone a criminal, standard. Indeed Supt Finan, on the facts of this case,

gave clear evidence that he did not consider, at the time of making the referral concerned,

that there was any basis for considering that any of the conduct of the members in question

was culpable.

12.54 That leads, to what appears to the Inquiry, to be the critical question. Were there

sufficient circumstances known at the time to DI Isaac (and indeed to SIO Harden who

recommended a s.98 investigation to DI Isaac) which would justify taking the view that

there was “not the appearance of there not being a criminal offence”.

12.55 The starting point of any consideration under this heading must be to note the

relatively limited interaction with and within GSOC which had occurred prior to the

decision being taken to designate the investigation under s.98. While it is not possible to

be absolutely precise about the length of time that the two relevant conversations on the

telephone took it is clear on all the evidence that both were brief. The evidence of Supt

Finan in respect of his initial conversation with SIO Harden, when Supt Finan made the

s.102 referral, was that it took approximately five minutes. SIO Harden gave an outside

estimation of ten minutes in his evidence. Supt Finan had initially contacted GSOC

Command and Control and was later called back by SIO Harden who was the

Investigating Officer on call. There was a Garda case conference in relation to the Road

Traffic investigation at 1pm on that date and it was during that conference (at

approximately 13.10 or 13.12pm) that Supt Finan took the call from SIO Harden and then

returned to the meeting. He outlined what he knew of the contact between Ms

Stewart and members of the Gardaí from his notes of his conversation with Sgt Doyle.

After his briefing from Supt Finan, SIO Harden gave evidence that he considered the

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information he had received, he concluded that an offence may have been committed, and

he then had a telephone discussion with his superior, DI Isaac - which, on the evidence of

DI Isaac, took approximately five or ten minutes – during which he recommended a

designation under s.98. DI Isaac considered what he had been told, there was a discussion

about potential offences which were contemplated and DI Isaac agreed with the

recommendation. The investigation was designated a s.98 investigation at 13.35pm, some

25 minutes approximately after SIO Harden’s first telephone conversation with Supt Finan.

12.56 It is also clear that the only information available to SIO Harden when he made his

recommendation was information which had been obtained by him from Supt Finan.

Likewise, the only information available to DI Isaac was the information imparted to him

by SIO Harden. The evidence concerning the information which was then available was as

set out by SIO Harden and DI Isaac, who outlined that they had been told that there had

been a referral from An Garda Síochána under the provisions of section 102 of the Act.

This referral was made by a senior manager and the gist of it was that that person (Supt

Finan) had formed the opinion that the conduct of a member of An Garda Síochána may

have resulted in the death of or serious harm to a person. The circumstances which were

relayed to him were that a woman by the name of Sheena Stewart had died. She had been

run over and killed by a bus. SIO Harden had explained to DI Isaac that, shortly before

her death, members of An Garda Síochána saw her in Bundoran. She had had an argument

with her boyfriend, was upset and gardaí had brought her to Ballyshannon. His

understanding was that there would be a bus available to take her home later that morning

or later that day. He was told there were a number of interactions between the gardaí and

Sheena Stewart at that location in Ballyshannon by the bus station and also there had been

calls to the gardaí highlighting that a female was on the roadway. He had been told that

one of those calls was a 999 call. He was also informed that Sheena Stewart had been

drinking, but was not drunk.

12.57 The evidence from both SIO Harden and DI Isaac was that, while they considered

the offence of endangerment briefly as a possibility, it was quickly determined that there

was no sufficient basis to justify conducting a criminal investigation in relation to such an

offence. Both witnesses were clear that the offence which they considered might have been

committed and which required that there be a criminal investigation was the offence of

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misconduct in a public office. Before returning to the facts it seems to the Inquiry to be

important to first consider the possible ingredients of such an offence for it is in the context

of such a possible offence that the facts or circumstances known or understood at the

relevant time need to be considered.

12.58 It is clear that the offence of misconduct in a public office has never been the subject

of a prosecution in this jurisdiction. However, such an offence is recognised in the United

Kingdom, where it is an offence at common law triable only on indictment. It carries a

maximum sentence of life imprisonment. It is an offence confined to those who are public

office holders and is committed when the office holder acts (or fails to act) in a way that

constitutes a breach of the duties of that office.

12.59 In the United Kingdom, the Court of Appeal in Attorney General's Reference (No 3 of

2003) [2004] EWCA Crim 868 has made it clear that the offence should be strictly

confined. It can raise complex and sometimes sensitive issues and it has been noted by the

Crown Prosecution Service that there has been a certain reluctance in preferring this charge.

In fact the CPS has stated that misconduct in public office should be considered only where:

• there is no suitable statutory offence for a piece of serious misconduct (such

as a serious breach of or neglect of a public duty that is not in itself a criminal

offence);

• there was serious misconduct or a deliberate failure to perform a duty owed

to the public, with serious potential or actual consequences for the public;

• the facts are so serious that the court's sentencing powers would otherwise be

inadequate.

12.60 Given that the issue had been raised in the course of cross-examination and given

that evidence had been tendered to the effect that the DPP had, prior to the events with

which this Inquiry is concerned, indicated to GSOC that a prosecution would be brought

for that offence in an appropriate case, confirmation of the views of the DPP was obtained

by letter of the 10th of December 2015, addressed to Ms Justice Mary Ellen Ring, Chair of

GSOC, which stated the following:- “Dear Judge

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I refer to our conversation in relation to the offence of misconduct in public office.

While this offence is prosecuted frequently in England and Wales and other common law

jurisdictions, it has not been the subject of a prosecution in Ireland in recent years. Indeed, I am

not aware of any reported example of it being prosecuted here since 1922.

Notwithstanding the above there is no reason to believe that if a prosecution were taken here that

the courts would hold that this common law offence is unknown to Irish law. In England the

ingredients of the offence have been set out in the case of Attorney General’s Reference (No 3 of

2003) [2004] 3 WLR 451. In an appropriate case the Director would prosecute for the offence

of misconduct in public office. She would argue that the ingredients of the offence are those identified

in the Attorney General’s reference case and that those ingredients meet the test of legal certainty as

set out in the decision of the Supreme Court in King v Attorney General [1981] IR 233 and

subsequent authorities.

This view of the Director has in the past been communicated to the Commission.

Of course in the event of a prosecution being taken the question of whether the offence is known to

Irish law, the precise parameters of the offence and whether it meets the test of legal certainty would

be matters for the courts to determine.

Yours sincerely,

________________

Barry Donoghue

Deputy Director”

12.61 Some play was made in the course of the hearings of the Inquiry about the fact that

the offence in question had never been the subject of prosecution in this jurisdiction.

However, in the Inquiry’s view, in the light not only of the position taken by the DPP but

also of the fact that the view of the DPP was known to GSOC at the relevant time, it does

not seem that the fact that no prosecution had previously been brought for the offence is

97

particularly relevant. It would obviously be for a court of competent jurisdiction to decide

if the offence is known to the law of Ireland and if so what the parameters of the offence

might be. But such a decision could only be reached in the event that a prosecution was

brought and sufficient facts proved or alleged to satisfy the criminal standard of proof so

as to bring into play the possibility that a sustainable conviction might be achieved. In all

the circumstances the Inquiry is satisfied that, provided that a sufficient threshold was met

in respect of the possible offence of misconduct in a public office, no legitimate criticism

could attach to any relevant designated officer for instigating a criminal investigation into

the possible commission of that offence.

12.62 But that is not the end of the matter. There was no suggestion that an offence of

that type might be recognised as forming part of the common law of Ireland which went

beyond the parameters of the offence which has been recognised in the United Kingdom.

It follows that any possible prosecution for that offence would require that there be

evidence of wilful neglect rather than mere inadvertence. In DPP v Bartley, an unreported

decision of the High Court, dated the 13th of June 1997, the judgment of Carney J, by way

of comment, briefly referred to the offence and approved the English case of R.

v. Dytham [1979] QB 722. In Dytham it was held that the relevant neglect of duty must be

wilful and not merely inadvertent, and further that it must be culpable, being without

reasonable excuse or justification. The level of culpability had to be 'of such degree that

the misconduct impugned is calculated to injure the public interest so as to call for

condemnation and punishment.' Given that misconduct in public office was the only

offence to which real consideration was given and given that wilful and serious neglect

forms an essential ingredient of that offence (if it were to be found to exist in this

jurisdiction) then the information available both to SIO Harden and DI Isaac when the

recommendation and decision to designate a s.98 inquiry was made needs to be viewed in

that context. In other words, whatever the threshold may be, was there a sufficient basis

for instigating a criminal investigation into conduct which would, necessarily, in order that

a conviction might be pursued, involve wilful and serious neglect. In the course of his

evidence DI Isaac said the following:-

“His recommendation was that the matter should be investigated under the provisions of section 98

of the Act. I considered his recommendation. I didn’t make my decision lightly. I was mindful of

98

the fact of the whole circumstances, a lady had died, mindful of the fact that a senior manager had

referred the issue to my organisation and the whole circumstances, especially in relation to the

interaction and a member of the public, highlighting the fact that a person was on the floor, on the

roadway and there was interaction around about that time and that person subsequently died in

circumstances which were relayed to An Garda Síochána. As a consequence, I was comfortable to

authorise a section 98 investigation” (Day 1 – Evidence of DI Isaac, page 5, line 6 – page

6, line 20).

12.63 It seems to the Inquiry that, apart from general considerations which have already

been commented on such as the fact of there being a reference under s.102, the key matter

identified by DI Isaac, and the one which he himself emphasises in his evidence, relates to

“the interaction” and the fact that there had been public concern expressed to An Garda

Síochána about Ms Stewart lying on the roadway in the context of the fact that it was

precisely in those circumstances that, after garda interaction, Ms Stewart came to be killed.

12.64 The Inquiry has already noted the difficulty in applying, by statutorily required

analogy, the process which would be followed in the event of a complaint to that which

follows subsequent to a reference under s.102. In that context the Inquiry has some

sympathy with the difficulties which are faced by senior GSOC personnel in making

decisions concerning the designation of an investigation after a referral. But it must be

recalled that, at the time in question, there was no suggestion that any member of An Garda

Síochána had actually seen Ms Stewart lying on the roadway. On the contrary the only

suggestion was that, whatever might have been the case when concerned members of the

public contacted An Garda Síochána, by the time that there was interaction thereafter Ms

Stewart was on the footpath. This is confirmed by the notes made by IO Gallagher of his

understanding of the matter. IO Gallagher’s notes were made after he was briefed initially

on the investigation and, therefore, represent a contemporary account of what was then

known to GSOC.

12.65 There is no doubt but that there was a legitimate matter of concern to GSOC. The

facts, as they appeared at the relevant time, were that the actions of Ms Stewart were such

that members of the public were sufficiently concerned to contact An Garda Síochána

because they believed that she was a danger to either or both herself and road users. In

99

addition, sometime later, she was killed in exactly the kind of circumstances which had

generated that public concern in the first place. But it seems to the Inquiry that that

legitimate concern could not, without more, justify a criminal investigation under s.98

centred around a possible offence of misconduct in public office for there were no

circumstances or indicia to suggest any degree of wilful and serious neglect of duty on the

part of any member of An Garda Síochána or, indeed, sufficient circumstances that would

warrant instigating a criminal inquiry into whether there might be evidence of such wilful

and serious neglect.

12.66 As noted earlier the legislation concerning the circumstances in which a s.98

investigation can be designated is somewhat opaque and particularly so in the context of

circumstances following a referral under s.102. The Inquiry has already noted its sympathy

with the GSOC officers concerned in the light of the difficulties caused by the lack of

clarity in the legislation. The Inquiry would wish to strongly emphasise that it would not,

in any way, question the bona fides of the actions taken by either SIO Harden or DI Isaac.

The Inquiry is entirely satisfied that they genuinely considered that an investigation under

s.98 was warranted in all the circumstances of the case. However, the Inquiry has come to

the view that, in being so satisfied, both SIO Harden in his recommendation and DI Isaac

in his decision were mistaken. As already noted the legislation cannot be taken to require

that there be evidence, as such, before a decision to designate a criminal investigation be

taken. The whole point of an investigation is to undercover evidence. But as also noted

earlier a decision to designate an investigation under s.98 is an important one precisely

because it confers on GSOC significant powers. It is a decision which should, therefore,

only be taken where there is a proper basis for reaching the conclusion that there is a

sufficient appearance, from such circumstances as may appear from an initial examination

of relevant events, of a possible criminal offence. In order for there to be such a sufficient

appearance of a possible criminal offence it followed, in the circumstances of this case, that

it was necessary that there be some material or information from which it might be inferred

that it was possible that a member or members of An Garda Síochána were guilty of wilful

and serious neglect of duty. The Inquiry is not satisfied that sufficient circumstances or

information had been disclosed or uncovered at the time when the decision to designate

under s.98 was taken to warrant a conclusion that there was any appearance of wilful and

100

serious neglect, thus warranting a criminal investigation. It seems to the Inquiry to follow

that, as of the time in question, and using the language of s.95, it must have been the case

that the circumstances then known did not “appear” to constitute a criminal offence.

12.67 The Inquiry is mindful of the issue already addressed concerning the standard by

reference to which the conduct of designated officers should be judged. The Inquiry does

not consider that the decision to designate the investigation in question as a criminal s.98

investigation was within the range of decisions which it was open to those involved to

recommend or take because of the Inquiry’s view that there was no sufficient basis for

considering that there might have been wilful and serious neglect. On that basis the Inquiry

concludes that the decision was mistaken. However, the Inquiry also reiterates its finding

that the decision was taken bona fide and, in the light of the lack of clarity which is to be

found in the legislation itself, the Inquiry feels that it must also conclude that the decisions

to recommend and designate respectively, while mistaken, would not justify any action

being taken against the individuals concerned.

12.68 Before going on to the next issue it should, however, be recorded that a principal

basis for the Inquiry coming to the view that the designation of a criminal investigation, at

the stage when it was in fact so designated in this case, was mistaken stemmed from the

limited information then available. While the issue is somewhat hypothetical, it should be

mentioned that it may well have been the case that a decision to designate a criminal inquiry

could have been justified when more information had been gathered and in particular when

certain CCTV footage became available to GSOC. The content of that CCTV footage will

require to be discussed in later sections of this report but for present purposes it is sufficient

to note that it clearly shows Ms Stewart lying on the roadway as a garda vehicle, being

driven by Gda Clancy and in which Sgt Galvin was a passenger, approached. The Inquiry’s

view that the decision to designate a criminal investigation on January 1st was mistaken

must, therefore, be clearly seen to be based on the information available at the time of the

decision in question and should not be taken to mean that the Inquiry feels that no criminal

investigation at all could properly have been instigated when more information became

available.

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(c) Summary of Conclusions and Recommendations:

12.69 The Inquiry has concluded that the 2005 Act lacks clarity as to the circumstances in

which a criminal investigation under s.98 can properly be commenced by GSOC. Given

that lack of clarity it appears to the Inquiry that the best interpretation which can be placed

on the relevant provisions is that, to use a double negative required by the legislation itself,

a criminal investigation can be commenced when it does not appear that the circumstances

do not appear to constitute a criminal offence. Nonetheless the Inquiry has concluded that

it is not necessary that there be any evidence of potential criminal action present before

such an investigation can be commenced.

12.70 In addition the Inquiry has concluded that it is necessary, where a matter arising out

of the death or serious injury of a person after garda contact is referred to GSOC by An

Garda Síochána in accordance with s.102 of the 2005 Act, that GSOC must first conduct

a sufficiently thorough examination of the circumstances to enable a proper conclusion to

be reached as to whether the threshold referred to is met.

12.71 The Inquiry has also concluded that GSOC designated officers generally appear to


Article 2 of the ECHR to colour their view as to whether it is appropriate, in particular

circumstances, to conduct a criminal investigation and that this consideration also applied

to the facts of this case.

12.72 In relation to the designation of the investigation in this case as a criminal

investigation it is necessary to consider the possible offence of misconduct in public office

as that was the only possible offence considered by the GSOC officers concerned. While

accepting that the offence in question has never been the subject of a prosecution in

Ireland, the Inquiry is of the view that it was not, in and of itself, inappropriate to

commence a criminal investigation into such a possible offence. The Inquiry had regard

to the fact that the DPP had indicated to GSOC, at an earlier stage, that a prosecution for

such an offence would be considered in appropriate circumstances on the basis of the

likelihood that an offence, similar to that which is recognised in the common law of the

United Kingdom, would be recognised in this jurisdiction.

102

12.73 However, the Inquiry also noted that the equivalent offence in the United Kingdom

required “wilful and significant” misconduct. In the circumstances of this case, the Inquiry

was not satisfied that, as of the time when the designation of an investigation into a criminal

offence occurred (which was within 30 minutes after the circumstances were first intimated

to GSOC), there was available sufficient information to warrant considering the possibility

of the sort of wilful neglect which would be necessary to constitute the offence of

misconduct in public office if such an offence forms part of the law of Ireland. In summary

the Inquiry has concluded that it must have been the case that, at the relevant time, the

circumstances then known did not appear to constitute a criminal offence.

12.74 On that basis the Inquiry has concluded that the decision, at that time, to instigate a

criminal investigation was mistaken. However, the Inquiry also has found that the decision

was taken bona fide and, in the light of the lack of clarity which is to be found in the

legislation itself, the Inquiry has come to the view that it must also conclude that the

decisions respectively to recommend and designate the investigation as a criminal

investigation, while mistaken, would not justify any action being taken against the

individuals concerned.

12.75 Finally, the Inquiry notes that, while it views the decision to instigate a criminal

investigation at the time when that decision was taken as having been mistaken, this should

not be taken to mean that the Inquiry feels that no criminal investigation at all could

properly have been instigated when more information became available.

(ii) The Initial Stages of the GSOC Investigation


12.76 As a number of different questions arose under this heading it is proposed to deal

with each of them in turn, setting out the respective submissions of the interested parties

separately in respect of each different issue.

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12.77 The first issue in time relates to the decision taken at the meeting in Ballyshannon

garda station on the 1st January which, in substance, meant that the making of initial

statements concerning their involvement in the events leading to the death of Ms Sheena

Stewart were left to the gardaí themselves rather than being the subject of interviews with

those gardaí by GSOC personnel. A subsidiary question under that heading arises out of

the fact that the statements made by those gardaí were, therefore, uncautioned

notwithstanding the fact that the gardaí concerned had been identified, in the original

GSOC decision to designate the investigation as a criminal investigation under s.98, as

being persons who were the subject of that investigation.

12.78 The second set of issues concerns the extent to which the three gardaí concerned

(being Sgt Doyle, Sgt Galvin and Gda Clancy) were made aware of the fact that the

statements which they were required to produce were intended, at least in part, for GSOC

purposes as well as being for the purposes of compiling a file in respect of the RTA

incident. That question also raises the issue of the lack of knowledge of the three gardaí

concerned, during this period of the fact that they had been identified as being the subject

of the GSOC investigation.

12.79 Returning to the first question Counsel on behalf of the extended Galvin family

drew attention to the provisions of para. 4.4.5 of the Protocol which is in the following

terms:-

“the arrangements will include the taking of any lawful measures which appear to the Garda

GSOC Liaison Officer on scene to be necessary or expedient, for the purpose of obtaining

and preserving evidence relating to the incident, including the:

• Preservation of the scene;

• Preservation and provision of potential exhibits or evidence, including Garda

documentation, vehicles, firearms, uniforms etc;

• Arranging for initial accounts.”

12.80 On that basis it was suggested that it was appropriate for GSOC to seek such

accounts from the members concerned directly rather than through Insp Joyce.

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12.81 In addition, reliance was placed on the evidence given by a number of GSOC

officials as to the importance of there being an independent investigation so as to

satisfy the requirements of Article 2 of the ECHR. In that context it was said that

it was inconsistent for GSOC officers to then delegate the taking of initial accounts

to the gardaí themselves.

12.82 Counsel for An Garda Síochána supported those submissions and suggested

that the Protocol provides for a scheme whereby the taking of initial accounts

should have been more appropriately done directly by GSOC officers.

12.83 Counsel for GSOC placed reliance on the evidence given to the effect that

the practice of allowing, in appropriate cases, members of An Garda Síochána to

make their own statements was a common practice frequently adopted when

appropriate. It was argued that the decision as to whether such a course of action

was appropriate was essentially an operational matter and that the Inquiry should

not attempt to second guess reasonable operational calls in that regard. Reliance

was placed on the fact that it had been agreed at the meeting of the 1st January that

there would be a “split-investigation” in which the gardaí would investigate the RTA

and GSOC would investigate garda interactions with Ms Stewart prior to her death.

Reliance was also placed on the fact that it had been agreed at that meeting that the

statements to be made by the gardaí concerned would be required to deal with their

interactions with Ms Stewart and that it had further been agreed that the relevant

statements would be transmitted to GSOC.

12.84 All parties noted that there was a conflict of evidence, which the Inquiry

would be required to resolve, as to whether, at the meeting of the 1st January, it was

communicated to Insp Joyce that a criminal investigation under s.98 of the 2005

Act had already been designated.

12.85 On the connected question of whether it was appropriate, in the light of the

fact that the investigation had been designated as a criminal investigation, that the

statements in question would be uncautioned statements, Counsel for the extended

Galvin family referred to the evidence which suggested that all s.98 criminal

investigations involving a death were, as a matter of GSOC policy, referred to the

105

DPP On that basis it was suggested that an uncautioned statement should not

have been taken after the investigation had been designated as a s.98 investigation.

Reliance was also placed on

s.67(1)(a) of the 2005 Act which provides for a principle of “full fairness” in the context of

a GSOC investigation. It was argued that this provision required GSOC to lean in favour

of a cautioned statement certainly in any case where a criminal investigation was in being.

Furthermore, reliance was placed on the fact that, at least from the 12th January onwards,

GSOC had identified apparent discrepancies between the initial account given of events

and what appeared from CCTV footage. It was noted that the statements of the gardaí

concerned had not, by that stage, been furnished to GSOC (although it appears as a fact

that some of them had already been made). On that basis it was suggested that persisting

with uncautioned statements, when such a discrepancy had been identified, was

inappropriate.

12.86 Counsel for GSOC argued that different thresholds apply to the commencement of

a criminal investigation under s.98 and a situation where a caution requires to be

administered which was said to arise only where it can properly be said that the individual

sought to be interviewed is in jeopardy of prosecution. In that context an analogy was

drawn with a criminal investigation conducted by An Garda Síochána and it was submitted

that a caution is only administered if a stage is reached when an interviewing garda believes

that a person is in jeopardy of prosecution. It was suggested that, at an earlier stage in an

investigation, there may well be persons who can properly be described as “persons of

interest” but in respect of whom the investigation had not progressed to a sufficient stage

that it can properly be said that they are in jeopardy of prosecution. It is said that such

“persons of interest” can properly be interviewed without caution provided that the

threshold which might lead to it reasonably being considered that they were “in jeopardy

of prosecution” have not been reached.

12.87 In reply Counsel for An Garda Síochána suggested that there was no valid distinction

between a member being “suspected of an offence” and a person being “in jeopardy of

prosecution”. It was said that the policing powers conferred by s.98 are provided because

a criminal investigation under s.98 comes into being on the basis of there being a reasonable

suspicion of the commission of an offence.

106

12.88 Turning to the question of the understanding of the members concerned in relation

to the statements which they were required to give it must first be noted that the

submissions on that issue were, to some extent, dependent on a resolution of the conflict

of evidence concerning whether Insp Joyce was made fully aware of the existence of a

criminal s.98 investigation at the meeting of the 1st January. On GSOC’s case Insp Joyce

was so aware and, on that basis, it was suggested that any failure to fully appraise the

relevant members was due to a failure on the part of An Garda Síochána to adequately

communicate that fact internally to the members concerned. It was also suggested on

behalf of GSOC that the evidence was not disputed concerning the fact that it had been

agreed at the meeting of the 1st January that the relevant members would be required to

“justify their actions” in respect of Ms Stewart in the course of their statements and that it

was also agreed that those statements would be made available for use by GSOC as part of

its investigation. To the extent, therefore, that any individual members may not have been

aware of the requirement to justify their actions in their statements and/or of the fact that

the statements were to be used for GSOC purposes, same was submitted to result from a

failing of internal communication within An Garda Síochána.

12.89 On the other hand Counsel for An Garda Síochána and Counsel for the extended

Galvin family relied on the evidence of Insp Joyce to the effect that the existence of a

criminal s.98 investigation had not been made clear to him at the meeting of the 1st January.

On that basis it was said that, given that there had been no other formal notification of the

existence of such an inquiry until, at least, the 26th January, any lack of understanding on

the part of the members concerned must be put down to the failure of GSOC adequately

to communicate the existence of a s.98 inquiry.

12.90 All parties noted that there was something of a conflict of evidence as to precisely

what had been communicated specifically to the three gardaí concerned concerning the

question of whether their statements might be required for GSOC purposes (as well as for

the RTA file) and also the requirement that they should “justify their actions” in respect of

Ms Stewart in the course of such statements. However, Counsel for An Garda Síochána

did suggest, in that context, that GSOC must accept responsibility for any inadequacy of

communication on the basis that it was GSOC designated officers who had decided to

107

adopt the practice of not taking direct initial accounts themselves but rather leaving that

matter to the gardaí.

(b) The Inquiry’s findings:

12.91 On the basis of those submissions there are two broad sets of issues which need to

be considered. First, there is the suggestion that the method of investigation adopted by

GSOC left too much of the evidence gathering to An Garda Síochána. The second set of

issues concern the extent to which, as a result of the way in which the initial investigation

was conducted, individual gardaí may have had a significantly less than clear view of what

was required of them and of the status of the investigation itself. That latter issue

somewhat overlaps with a general question of communication and information which it is

intended to address separately. As part of those issues the question of whether it was

appropriate to secure uncautioned statements also arises.

12.92 Much of the precise sequence of events is not, in itself, in dispute. As already noted

the initial stage of the GSOC investigation involved a meeting at Ballyshannon garda

station on the evening of the 1st January between SIO Harden, IO Breen and Insp Joyce.

One of the few contested issues of fact which arises from the evidence tendered concerns

what happened at that meeting with particular reference to the information conveyed to

Insp Joyce about the nature of the GSOC investigation itself and the types of statements

which would be required from those gardaí who had had contact with Sheena Stewart prior

to her death. What is clear is that it was agreed that statements would be furnished from

the gardaí concerned and that Sgt Mullaney, who was not one of those gardaí directly

involved in contact with Sheena Stewart, would be in charge of the RTA element of the

investigation. One of the criticisms made both by An Garda Síochána and by

representatives of the Galvin family is directed towards the fact that GSOC did not

interview those gardaí who were centrally involved at that time. It is, therefore, necessary

to set out the evidence concerning the suggestions which were made relating to such

interview:

12.93 SIO Harden gave evidence that it had been agreed between himself and Insp Joyce

that the members themselves would provide their own statements in relation to the incident

and that this would be done through Insp Joyce. He said that, taking into account the fact

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that it was New Year’s Day, that the members in question had been working a night shift,

that they had experienced a death, and that there were, therefore, welfare considerations,

he and Insp Joyce believed that this was a suitable way to deal with the members

themselves. However, he said that at the end of that meeting he proposed to Insp Joyce

that there should be an opportunity to meet the members should they choose to do so. He

said that this was something he does on every referral that he attends and that he feels that

it is an important part of the job. He explained that, while there is in his view no statutory

obligation to meet the relevant members, it would be something that he does as a matter

of course to ensure that the members concerned understand who GSOC are, what it is

they do and how they intend to investigate. He said a lot of his job in those instances is

“trying to get over the canteen gossip of what GSOC does”. He said that this was one of

very few occasions where such a meeting did not take place. When he had sought a meeting

with the relevant members, Insp Joyce had told him they were not on shift. He had

understood that Insp Joyce was to pass on the message to the three members that he was

offering to meet them and would provide any information or clarification they wished in

respect of GSOC itself and the investigation. He stated that the meeting could have taken

place at any stage. IO Breen said that he thought there had been some discussion about

meeting the members when they had called back to the garda station on the 2nd of January

but said that he knew they were not on duty. Insp Joyce said that all SIO Harden had asked

was whether the three members were around and that he might have indicated that he had

not seen them around. He said he had no idea whether they were on duty or not. He

denied telling the GSOC officers that they were off duty and did not recall any specific

request to speak with them. This was the extent of the exchange on this point.

12.94 Under cross-examination Insp Joyce said that there could not have been any realistic

offer to meet members because the GSOC investigators were leaving the following

morning and that they only dropped into the station that following morning for a couple

of minutes to drop off the document request and to collect the CCTV. He indicated that,

if SIO Harden had expressly said that he wished to meet with the relevant members, there

would have been no difficulty contacting them. He did not understand that he was to

convey a message to them to the effect that SIO Harden was available for a meeting.

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12.95 The next issue of controversy concerns the information imparted at that meeting

about the status of GSOC’s involvement. Inspector Joyce indicated in his evidence that

he understood the GSOC investigators were carrying out a general inquiry rather than an

investigation into specific members of the gardaí. He said that he understood that the

GSOC investigators simply wanted members who had had contact with Ms Stewart to

make statements justifying their actions. He indicated that SIO Harden would not have

had a clear idea at the initial meeting as to which gardaí should make such statements for

the GSOC investigation because he would not have been fully aware of all the facts at that

stage. However, he indicated that he spent perhaps 15 – 20 minutes obtaining details from

the PULSE record for the GSOC investigators and telling them what he knew from the

case conference earlier that day. It was he who identified the three members who had

contact with Ms Stewart. He gave evidence that he was not aware that there was a s.98

investigation in being and that, if the term “investigation” had been used, this would have

caught his attention and he would have approached matters differently. He understood that

GSOC would normally do a general inquiry first and decide what they are actually

investigating. He said the impression he got at the time was that SIO Harden was going to

prepare a file for the coroner. He had understood that this was for the purpose of

demonstrating impartiality, lest the interaction between Ms Stewart and the gardaí was an

issue at the inquest.

12.96 SIO Harden was adamant in his evidence that he did explain to Insp Joyce that they

were conducting an investigation in accordance with Section 98. However he said that he

did not believe that he elaborated on exactly what that meant because he did not feel that

he needed to do so when addressing an Inspector of the Gardaí. He said that in his mind

Insp Joyce was well aware that it was a s.98 investigation. He said that GSOC do not carry

out inquiries, they are in the business of investigations and that the term “inquiry” was not

one which he would have used.

12.97 IO Breen, who attended the meeting with SIO Harden, also stated that SIO Harden

had said to Insp Joyce that it was a Section 98 investigation. He said it would be normal

procedure to say that it was a referral and outline what section the investigation was under.

When asked about whether the statements to be provided were for the purposes of the

investigation of a criminal offence, IO Breen said “but you are requesting an initial

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statement in relation to that just accounting for the interaction with the person who is Ms

Stewart. Just their duty, you know, the meeting and what occurred. That’s it.”

12.98 On the question of whether the persons under investigation were identified it was

put to SIO Harden that Insp Joyce had perceived that there was nobody in particular under

investigation. He said that once an incident is referred and GSOC are investigating the

incident, then the members in question are the subject of that incident. He indicated that

while he might not have used the express words that they were under investigation, they

were certainly the subject of that incident and that investigation. He did not wish there to

be a suggestion that GSOC were “targeting guards” as this is not their purpose.

12.99 In the light of that evidence it will, therefore, be necessary to return to the question

of whether any criticism can legitimately be directed towards those GSOC officials

concerned for not having personally interviewed the relevant gardaí and for having made

arrangements to allow the position of those gardaí to be set out in statements made by the

gardaí themselves.

12.100 There is a conflict of evidence concerning whether, at the meeting in Ballyshannon

on the evening of the 1st January, it was communicated to Insp Joyce that a criminal or s.98

investigation had been designated. It must be recalled that, by that stage, the decision to

so designate the investigation had already been taken. The GSOC officers concerned gave

evidence that that fact was communicated to Insp Joyce. Insp Joyce denied any such

communication. Unfortunately, although IO Breen took some notes, there was a dearth

of helpful notes on the issue.

12.101 It is difficult at this remove to express a definitive view as to what was or was not

said at that meeting with any real degree of confidence. However, the Inquiry is of the

view that the most probable explanation is that the fact of there being a criminal

investigation was, in some way, expressed by the GSOC officers but in a way which did

not fully or adequately communicate the criminal nature of the investigation to Insp Joyce.

It may well be that this lack of effective communication stemmed from the use of

terminology which would be entirely familiar to GSOC officials but may have been much

less so to even a relatively senior garda officer such as Insp Joyce. For example, it may well

be that terminology such as “a s.98 investigation” or the like, was casually used but not in

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a way which communicated to Insp Joyce the fact that such a designation meant that there

was a criminal investigation afoot or that particular individuals were the subject of that

investigation. The Inquiry accepts that the GSOC officers concerned attempted to

communicate the fact that there was such a criminal inquiry in being and genuinely believed

that they had properly communicated that fact to Insp Joyce. However, the Inquiry also

accepts that Insp Joyce did not have that fact communicated to him in a way which he

clearly understood and that he was, therefore, not actually aware, as a result of the meeting,

that a criminal inquiry was in being.

12.102 Perhaps this lack of communication emphasises the need for greater care in the

precise communication of important information arising in the context of GSOC inquiries.

The fact that senior GSOC officials believed that they had communicated to a senior garda

the existence of a criminal investigation but that the senior garda concerned did not fully

appreciate that such an inquiry had been designated, demonstrates the need for ensuring a

much greater level of clarity of communication.

12.103 It is important at this stage to recall at least one aspect of the relevance of that lack

of clear communication. As already noted, neither Sgt Galvin nor Gda Clancy were aware

of the fact that they were the subject of a criminal investigation right up to the time when

they were contacted by IO Gallagher about a cautioned interview. Sgt Doyle did not know

that he was the subject of such an investigation until it was, to all and intents and purposes,

over. While, as has been noted elsewhere, there were other factors which also contributed

significantly to the fact that those gardaí were unaware of the situation, nonetheless the

failure of clear communication on the 1st January must be said to have been a contributory

factor. One of the unfortunate consequences was that, thereafter, relevant GSOC officials

were clearly under the impression that all relevant gardaí were likely to be aware of the

nature of their investigation when that was not, in fact, so. In the course of their evidence

a number of GSOC designated officers suggested, correctly so far as it goes, that all gardaí

in the district would have been aware of a GSOC involvement. That seems highly likely.

The fact that GSOC officers arrive in a garda station after a death is most unlikely to go

unnoticed. The fact, therefore, that some form of GSOC inquiry or investigation was

occurring was likely to have been known to all concerned from the beginning. However,

it is a different thing for gardaí to be aware of a GSOC involvement, on the one hand, and

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to be informed that there is a criminal investigation and in particular that they may

individually be the subject of such criminal investigation, on the other. The issue is not

knowledge of a GSOC involvement. The issue which, on any view, necessarily arises

centres on the fact that gardaí who had been identified as being the subject of a criminal

investigation (whether rightly or wrongly) were not made aware of that fact for a very

considerable period of time.

12.104 Another aspect of this issue concerns what happened next. It is at least agreed

between all relevant witnesses that it was accepted that the gardaí concerned, in making

their statements, would have to deal with or “justify” their contact with Sheena Stewart. In

that regard the evidence of what happened at the Ballyshannon meeting on the evening of

the 1st January is as follows.

12.105 SIO Harden and IO Breen gave evidence that it was agreed at the meeting that the

statements to be taken in relation to the GSOC investigation should be sourced by Insp

Joyce who delegated this function to Sgt Mullaney (who was carrying out the RTA

investigation and compiling statements for that purpose). IO Breen stated that, in his view,

sourcing statements in that way could constitute the taking of accounts in accordance with

the Protocol. In relation to the taking of statements, Insp Joyce said that he was not

familiar with the typical procedure for such investigations but he did not have a difficulty

with the statements being routed in this way, via himself.

12.106 However, there is, at a minimum, some differences in the evidence as to just how

much of that was communicated to the three gardaí concerned. The Inquiry does not, of

course, have any direct account from Sgt Galvin. However, the following evidence is of

some relevance in attempting to assess what Sgt Galvin understood to be the role of the

statement which he was required to make.

12.107 Insp Joyce said that he gave Sgt Mullaney the task of relaying to the three members,

namely Sgt Doyle, Sgt Galvin and Gda Clancy, that their statements were required and that

they should give a rationale for their actions. However, he also said that he subsequently

spoke personally to Sgt Doyle and Sgt Galvin about the need to make statements justifying

their actions. His evidence was that, even though he did not understand that there was a

s.98 investigation in being, or perhaps did not appreciate the import of the reference to

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that section, that the three members under investigation must have been live to the GSOC

investigation and the fact that their actions were under scrutiny because the attendance at

the station of the GSOC investigators was an unusual event and was referred to in the

media. He also said that he would not normally be looking for statements in a fatal RTA

investigation; that would be a sergeant’s job. He said that he had had discussions with both

sergeants, although he said that he never discussed the statement directly with Gda Clancy.

He said that he had to follow up with Sgt Galvin several times in relation to the statement

and that he felt Sgt Galvin was worried about it. He pressed him to provide the statement,

reiterated that there was a time limit for its provision and reassured him that he simply had

to justify his actions on the night with respect to his dealings with Ms Stewart. Insp Joyce

expressed the view that the members under investigation may have “turned a blind eye to

the obvious in terms of the purpose of their statements”. However, he accepted that his

requests were reasonably informal and that he himself had continued to believe that GSOC

were conducting a general inquiry rather than a criminal investigation.

12.108 The Inquiry did have the benefit of the evidence of both of the other two gardaí

who were, unbeknownst to themselves, identified as being the subject of a criminal

investigation. That evidence was as follows:

12.109 Gda Clancy gave evidence that his understanding was that his statement had been

made purely for the purpose of the RTA investigation. He said that it was in fact Sgt Doyle

who had asked him to provide a statement, in the days following the road traffic accident

and that he had made his statement on the 7th of January and furnished it to Sgt

Doyle. He did not have any recollection of a request coming directly from Sgt Mullaney.

He did not have any contact with Insp Joyce about it and, as Sgt Doyle was his unit

sergeant, he would have provided it to him in accordance with the rank structure, as all

correspondence and requests would usually come from his unit sergeant. His

understanding was that his statement should cover all aspects of the road traffic accident

and his involvement in it, including his interaction with Ms Stewart and his role in

preserving the scene. He said that he was aware GSOC investigators had been present in

the garda station on the 1st of January but he was not aware he was under investigation.

He said that he had never received any notification that he was the subject of a GSOC

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investigation and had never been given the names or contact details of SIO Harden or any

other GSOC investigator prior to being contacted by IO Gallagher in late March 2015.

12.110 Sgt Doyle gave evidence that he was initially asked to provide a report by Supt

Finan. As he had been at the scene it would be normal that he would send in a report for

the information of the Superintendent and the Chief Superintendent on the circumstances

of what had occurred. However, when Sgt Mullaney took over the investigation, he asked

for statements so Sgt Doyle had made a statement for that purpose within a few days. In

his evidence he said that he had been asked to stand aside from the investigation into Ms

Stewart’s death as GSOC were getting involved in the investigation. However, he had no

inclination that he was potentially one of the officers who was going to be investigated by

GSOC. He understood that GSOC were going to look into the circumstances, which

would be normal enough, if a person suffered a death or serious injury and the gardaí had

interaction with them beforehand. He said that he prepared his statement on the

understanding that it was for a criminal investigation of the RTA but had no idea that it

would be used by GSOC. Initially he did not recall having any conversation with Insp

Joyce about the making of his statement. However, Insp Joyce subsequently gave evidence

in respect of having discussed it with him. This was put to Sgt Doyle in the course of his

evidence on a later date and he indicated that he did in fact remember a conversation with

Inspector Joyce. He said that he had made his statement already at that stage but that Insp

Joyce said to him to make sure that he justified his actions. He said that he understood

that there was a possibility that GSOC were going to look at the statement but that his

understanding of the initial investigation was that this was just a general inquiry into the

dealings of gardaí with Ms Stewart on the night. However, he reiterated that he was not

aware that he was under any investigation as such. He said that, when Garda Clancy was

informed by IO Gallagher that he was being investigated, he assumed that he would be

similarly informed within a few days that he was also being investigated but that he never

was.

12.111 In the light of that evidence a number of issues arise. The first is the question of

fact as to exactly what was said to the three relevant gardaí concerning the purpose of the

statements which they were required to make and in particular the extent to which it was

communicated to them that the statements might be used for GSOC purposes in addition

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to being potentially of some relevance in the event that there was a prosecution under the

Road Traffic Acts. Second, there is the question of whether it was appropriate or proper

to require gardaí who had been identified as being the subject of a criminal investigation to

make such statements relating to their contact with Sheena Stewart without being

cautioned. That latter issue comes into particular focus in the light of the fact that the

gardaí concerned were unaware of the fact that they were identified as being the subject of

a criminal investigation.

12.112 The Inquiry has earlier identified that the first question which arises is as to whether

it was, in all the circumstances, appropriate for the relevant GSOC officers to leave the

taking of initial statements from the gardaí concerned to the gardaí themselves. The Inquiry

is mindful of the fact that there may well be many cases where there will be an overlap

between what might be termed an ordinary criminal investigation being carried out by An

Garda Síochána and a GSOC investigation of whatever type. Indeed, the legislation, and

in particular s.108 of the Act, contemplates this in that express provision is made for the

adoption of a protocol to be agreed between GSOC and An Garda Síochána to deal with

precisely that situation. It would appear that the relevant protocol goes beyond the narrow

confines of what the statute requires. There is nothing, of course, wrong with that. It

obviously makes sense for GSOC and An Garda Síochána to agree practical solutions to

the sort of operational questions which may well arise in the implementation of the

legislation concerning GSOC’s role. But it is important to emphasise that there is a special

statutory status to those aspects of the Protocol which are directed towards ensuring the

orderly conduct of parallel investigations into criminal matters involving members of the

public (being conducted by An Garda Síochána) and GSOC issues.

12.113 The Inquiry has already commented on whether there was sufficient information

or materials available at the time when a decision to designate the investigation in this case

under s.98 was made. It is unnecessary to return to that issue again. The Inquiry is not

persuaded that there is anything inappropriate, in and of itself, in GSOC, in an appropriate

case, leaving it to members of An Garda Síochána to make statements which might form

part of the materials relevant to both a criminal investigation relating to a member of the

public and a GSOC investigation. The decision on whether that may be appropriate seems

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to the Inquiry to be an operational matter best left for decision on a case by case basis for

those involved.

12.114 The Inquiry is also mindful of the fact that there may well be a difference in the

legal threshold appropriate to the instigation of a criminal investigation, on the one hand,

and the requirement to interview a suspect under caution, on the other hand. The Inquiry

has already dealt with what it considers to be the appropriate threshold for the instigation

of a criminal investigation. It is necessary that there be sufficient information or available

materials such that it cannot be said that there is not the appearance of a criminal offence

disclosed (for the reasons already addressed the double negative is deliberate). The formal

legal threshold for the requirement to caution a suspect before inviting that suspect to make

a statement is different.

12.115 The caution is seen as “underpinning the constitutional right to silence.”18 The

Judge’s Rules are a set of administrative directions for the guidance of police in the

questioning of suspects and were originally intended to ensure the “fair administration of

justice.”19 The Judge’s Rules are not rules of law but members of An Garda Síochána are

expected to comply with them. There are 11 rules in total and Rule 2 provides that the

gardaí must caution a person who they have decided to charge with an offence before

asking any further questions. A number of cases have recognised the importance of

administering a caution in a timely manner focusing on whether the person concerned has

moved from being a suspect to being a person whom the gardaí have decided to charge

with an offence20.

12.116 The fact that a garda may have a suspicion that the suspect has committed a crime

does not necessarily mean that he must immediately caution the suspect21. However if a

garda has decided to charge a person with an offence he should administer the usual caution

before asking any further questions. If the garda is questioning a person and the garda is in

possession of sufficient information to give rise to a possibility that the person may be

charged with an offence, the member should administer the caution before asking any

18 People (DPP) v Finnerty [1999] 4 IR 364 19 R v Voisin[1918] 531; McCarrick v Leavy [1964] IR 225 20 Orange, Police Powers in Ireland, Bloomsbury Professional, 2014 21 People (DPP) v O’Reilly [2009] IECCA 18

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further questions. In addition if there are “attendant factors concerning the manner or

circumstances” in which a statement is being made, the principles of basic fairness may

require the administration of a caution22.

12.117 It must, of course, be recognised that, as a matter of practice, investigating

authorities may well decide to administer a caution as an exercise in prudence even if it may

not, strictly speaking, be required in accordance with that jurisprudence. It is unlikely that

any questions concerning the admissibility of evidence obtained at an interview will ever

arise because a caution was administered in circumstances where it was not, strictly

speaking, necessary. However, real questions can arise concerning the admissibility of

evidence taken at an uncautioned interview if it can credibly be suggested on behalf of an

accused that the circumstances required a caution. Thus an uncautioned interview runs the

risk of an issue arising at a trial as to whether a caution was in fact required. It is in such

circumstances that prudence may well dictate administering a caution for the avoidance of

doubt.

12.118 There may well, therefore, be circumstances where it is appropriate to instigate a

criminal investigation, where it may be reasonable to identify a particular member of An

Garda Síochána as being one of those concerned with that criminal investigation, but where

the case against the member concerned falls a long way short of the level of suspicion or

intention to prosecute which would require the administration of a caution. The Inquiry

is not, therefore, persuaded that there is anything necessarily wrong with inviting a member

of An Garda Síochána, in the context of a s.98 criminal investigation, to make an

uncautioned statement where that member has been identified as one of those who may

be the subject of the investigation concerned.

12.119 However, it does seem to the Inquiry that basic fairness (and the provisions of

s.67(1)(a) of the 2005 Act in that regard) would require that any such member should be

made aware of the fact both that there is a s.98 criminal inquiry in being and that the

22 Orange, Police Powers in Ireland, Bloomsbury Professional, 2014; People (DPP) v O’Reilly [2009] IECCA

18

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member concerned has been identified as being one of those the subject of such an inquiry,

prior to their being invited to make a statement.

12.120 In the circumstances of this case the Inquiry is not persuaded, even if it were wrong

on the question of whether there was enough information to warrant a s.98 inquiry at the

initial stage in the first place, that there was anything approaching the level of information

or materials which would have required, at that stage, that the three gardaí concerned be

interviewed under caution. The Inquiry is also not persuaded that, in the particular

circumstances of this case, there was anything necessarily wrong with statements being

sought from the gardaí concerned in the manner adopted. It was not, in the Inquiry’s view,

necessarily the case that GSOC officers ought to have interviewed each of the gardaí

themselves at an early stage, although that was a course of action which could have been

adopted.

12.121 However, the Inquiry does consider that it was wrong that the three gardaí in

question were invited to make statements at a time when a criminal investigation was in

place and where they had been identified as being members in respect of whom that

investigation was directed, without those gardaí being clearly told, prior to them furnishing

their statements to GSOC, that such was the case. In the Inquiry’s view those who sought

statements in that manner (and therefore, in particular, SIO Harden and IO Breen) should

have done more to ensure that the gardaí concerned knew the full situation before making

statements which were, at least in part, intended for GSOC purposes. The Inquiry

concludes, therefore, on this issue that the relevant GSOC designated officers were entitled

to request uncautioned statements in the manner which they did. That decision was within

the bounds of the sort of reasonable call which would have been open to those designated

officers in the circumstances of this case. The Inquiry does, however, conclude that more

should have been done to ensure that the gardaí concerned were aware of the status of the

GSOC investigation and in particular its status relevant to themselves, before they were

required to submit such statement. The sequence of events which led to the gardaí

concerned not being so aware have been partly addressed in this section and are further

addressed in the section concerning information and communication generally. There was,

in substance, a series of communications which lacked clarity, were insufficiently formal or

where the agreed communication method failed which led to the gardaí concerned not

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being aware of the situation prior to their statements being handed over the GSOC. In

that context it would be wrong to place all of the blame on those GSOC offices who were

involved in the initial meeting for, as has already been pointed out, they believed that the

fact of a criminal investigation had been communicated and had, therefore, reasonable

grounds for anticipating that the gardaí concerned would be made aware of that fact as part

of the background against which statements “justifying their position” would require to be

made. In those circumstances it does not seem to the Inquiry to be appropriate to take any

action in that regard in respect of those GSOC officers who were involved in the meeting

of the 1st January.

12.122 The final question which arises concerns the circumstances in which it appears to

have been significantly less than clear to the three gardaí who were the subject of the GSOC

investigation as to the nature of the statements which they were required to provide and in

particular the extent to which those statements might be used for the purposes of a GSOC

investigation. It must first, of course, be recalled that Insp Joyce did not understand that

there was a formal GSOC investigation in being at all. The circumstances in which that

came to pass have already been commented on. But it follows that Insp Joyce could not,

whether through Sgt Mullaney or otherwise, have imparted to any of the three members

concerned that they were the subject of a formal GSOC criminal investigation or that their

statements were required in that context, for he did not know or understand that to be the

case himself.

12.123 However, it is clear, and indeed accepted by Insp Joyce, that it was agreed at the

meeting of 1st January that the statements required from the three members would need to

“justify” the actions of the members concerned in respect of their contact with Ms Sheena

Stewart. It was also clear that those statements would be made available to GSOC and

would form part of whatever GSOC inquiry or investigation was afoot.

12.124 It certainly does not seem that Gda Clancy got that message in anything remotely

resembling a clear fashion. The Inquiry accepts his evidence that he did not know that the

statement which he was required to make was for GSOC purposes. The position is a little

less clear in respect of Sgt Doyle for, while initially maintaining that he considered that he

was simply making a statement for the purposes of an RTA file, he slightly qualified that

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position when recalled in the light of evidence given by Insp Joyce. The Inquiry is satisfied

that he was told that his statement should justify his actions in respect of Ms Stewart but

is not satisfied that it was made sufficiently clear to him that his statement might be used

for the purposes of a GSOC investigation of any type. Given that, for tragic and obvious

reasons, the Inquiry did not have the opportunity of hearing from Sgt Galvin it is difficult

to reach any definite conclusions as to his state of knowledge but it seems reasonable to

infer that it was not dissimilar to the position of Sgt Doyle.

12.125 It follows that the Inquiry is satisfied that, at the time when they made their

respective statements, it had not been made sufficiently clear to the three members

concerned that those statements were to be used, at least in part, for GSOC purposes. At

least in the case of Sgt Doyle and Sgt Galvin it may well have been the case that there was

some, informal and unclear, communication broadly to that effect but in all the

circumstances it does not seem likely that any of the members had a sufficiently clear view

of the purpose for which their statements were required. They most certainly were not

aware of the fact that they were, at the time in question, the subject of a formal criminal

investigation. But they were not, in the Inquiry’s view, even sufficiently clear as to the

precise multiple purposes for which their statements were required. This finding brings

again into focus the lack of clear and effective communication which, in the Inquiry’s view,

underlies many of the issues which have arisen in the context of this case and which will

be returned to in the section of this report which deals specifically with those questions.

12.126 Given that the specific focus of this inquiry is, as has been pointed out, the conduct

of designated GSOC officers it is necessary to record that any lack of sufficient

communication to the three members concerned of the fact that their statements were

required for GSOC purposes as well as RTA purposes cannot be laid at the door of any

GSOC designated officers. Whatever may have been the case concerning the lack of

communication of the fact of a criminal investigation, which occurred at the meeting of

the 1st January, it is clear that the GSOC officers concerned reached, at that meeting, an

agreement that the statements which were to be obtained from the three relevant members

were to be used for GSOC purposes and were to include a justification of the interaction

of the three members concerned with Ms Stewart. To the extent that the requirements for

those statements and the intended purpose of those statements were not adequately

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communicated to the relevant gardaí, same cannot, therefore, be blamed on any GSOC

designated officers.


12.127 The Inquiry has found that it is difficult to express a definitive view on a conflict

of evidence between GSOC officers (SIO Harden and IO Breen) and An Garda Síochána

(Insp Joyce) as to precisely what was said at a meeting in Ballyshannon garda station on the

1st January concerning whether a criminal investigation under s.98 of the 2005 Act was in

being. The Inquiry accepts that the GSOC officers concerned attempted to communicate

the fact that there was such a criminal inquiry in being and genuinely believed that they

properly communicated that fact to Insp Joyce. However, the Inquiry also accepts that

Insp Joyce did not have that fact communicated to him in a way which he clearly

understood and that he was, therefore, not actually aware, as a result of the meeting in

question, that a criminal investigation was in being. That lack of clear communication was

one of the factors (but not by any means the only factor) which led to the fact that the

three members of An Garda Síochána who had been identified as being the subject of the

criminal investigation (Sgt Doyle, Sgt Galvin and Gda Clancy) were not informed of the

fact that there was a criminal investigation and that they were the subject of it.

12.128 The Inquiry has noted, however, the agreement of all those who were present at

the meeting of the 1st January to the effect that it was accepted that statements from the

three gardaí concerned would be obtained in which those gardaí would be required to

“justify” their conduct in the context of their contact with the late Ms Sheena Stewart prior

to her death. Those statements were to be taken in conjunction with the taking of

statements of the gardaí concerned in the context of the preparation of a file in relation to

a possible criminal prosecution under the Road Traffic Acts. It was also clear at the

meeting in question that the relevant statements would be made available to GSOC for the

purposes of its investigation.

12.129 The Inquiry has concluded that there was nothing wrong, in and of itself, in GSOC

using that method for obtaining initial statements from the gardaí in question and that there

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was nothing wrong, in and of itself, in such statements being requested without the

members concerned being cautioned. However, the Inquiry has concluded that it was

wrong that those members were required to submit statements to GSOC without the

members concerned having been informed of the existence of a criminal investigation and

of the fact that they were the subject of the criminal investigation concerned.

12.130 The Inquiry has also concluded that, at the time when the three gardaí concerned

made their respective statements, it had not been made sufficiently clear to those members

that the statements which they were to make were, at least in part, for GSOC purposes. In

that regard, whatever about the lack of communication which occurred at the meeting of

the 1st January referred to in the conclusions of the previous section of this report, it is

clear that the GSOC officers concerned at that meeting reached an agreement that

statements were to be taken from the three members at least in part for purposes of the

GSOC investigation. The fact that that aspect of the agreement was not clearly

communicated to the members concerned must be laid to a failing of adequate internal

communication on the part of An Garda Síochána.

(iii) The “extension” of the GSOC investigation and the decision to conduct cautioned interviews:

12.131 It should be noted that this section includes analysis of the extension of the GSOC

investigation to one involving possible offences concerning making false and misleading

statements or perverting the course of justice, which for the purpose of this Report, has

been combined with the issue of the decision to interview Sgt Galvin and Gda Clancy

under caution.


12.132 Having reviewed the uncautioned statements and the CCTV footage of the

incident, GSOC officers made the decision to extend the investigation to one involving the

potential offences of perverting the course of justice, or making false and misleading

statements.

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12.133 Both of those offences are essentially to do with making a false statement; one

statutory and one common law. It was submitted by GSOC that there was a conflict

between what was said in the relevant statements with what appeared on the CCTV and

the evidence of passers-by.

12.134 In particular it was submitted that once all the evidence was available, there was a

clear conflict on what was said to be the crucial issue of whether Ms Stewart was lying on

the road or standing on the footpath as the garda van approached. It was argued that the

state of information at that time admitted a number of possible interpretations with one

being the possibility that the garda members concerned had deliberately omitted to say that

Ms Stewart was lying on the road as the Garda van approached, so as to put forward a

wholly different context to their interaction with her at that precise time. If, when they

approached her, and then spoke to her, she was standing on the footpath, their conduct in

leaving her would be easier to justify than if she was lying on the roadway when they

approached. Moreover, if the omission of this fact from their statements was deliberate

(which again was one of several possibilities) then it might suggest that there was something

to conceal, which, if so, would be relevant to the original suspected offence of misconduct

in a public office.

12.135 In the context of the question of whether an interview under caution was

appropriate, it was submitted on behalf of the designated officers that that issue was

interwoven with the question of the “extension” of the investigation to contemplate a

s.110 offence or the offence of perverting the course of justice. Where the state of the

information admitted of a number of interpretations, but one of them was the possibility

that gardaí had deliberately omitted to say that Ms Stewart was lying on the road when the

garda van approached, that gave rise to a potential offence and it was proper to interview

the members concerned after caution. It was stated that GSOC have a statutory obligation

to carry out a thorough and independent investigation in accordance with appropriate legal

procedures and that it was in this context that the decision was made to interview after

caution so as to provide proper legal protection for the relevant members.

12.136 Submissions were made in respect of what was said by some witnesses before the

Inquiry to the effect that the giving of a caution was something which was offensive or

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wrongfully increased stress levels for Sgt Galvin. On behalf of the designated officers, it

was submitted that this was a bizarre stance and that the reality is that a caution is a legal

protection for the suspect. (It should be noted that this was not a stance which was adopted

by any of the parties in legal submissions and there was no submission advanced that the

cautions should not have been administered.)

12.137 On behalf of the designated officers, it was submitted that a suspect has a right not

to incriminate himself and that this right enjoys constitutional recognition and protection

under the European Convention on Human Rights. It has its source in the Judges’ Rules

and is therefore an obligation upon the interviewer and a protection for the accused. It

was submitted that there could be no wrongdoing identified in administering the caution

once the evidence had reached the stage described above.

12.138 It was submitted that the threshold for administering a caution employed by GSOC

is precisely the same as that used by members of An Garda Síochána and that the decision

is made on the basis of their understanding of the law and fair procedures. In

circumstances where the investigating officers understood that the members had been told

their statements were being made for the GSOC investigation, the conflict identified was

sufficient to raise a suspicion “in the legal sense of the term” that the members had

deliberately chosen to omit the fact that Ms Stewart was lying on the road. If this omission

were deliberate then this would amount to an offence under s.110 of the Act and an offence

of attempting to pervert the course of justice contrary to common law and in those

circumstances it was said to be entirely appropriate to seek to interview the relevant

members and to caution them in relation to both offences.

12.139 Submissions made on behalf of the extended Galvin family in relation to this issue

referred back to the position that it was inappropriate that the task of recovering the initial

statements from members was delegated to Insp Joyce and that this caused confusion from

the outset. Essentially, the failing identified was of a failure to seek cautioned statements

at the outset, where the members were the subject of an investigation under s.98. No

submission was made that the members should not have been cautioned at this later stage,

but rather that the caution should have been administered at a far earlier stage. Like

submissions were made on behalf of An Garda Síochána.

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(b) The Inquiry’s Findings:

12.140 The facts which form the backdrop to this issue have already been set out in some

detail. The relevant parts of the statements made respectively by Sgt Galvin and Gda Clancy

have been quoted. A detailed account of what can be seen from the CCTV footage has

also been set out. The Inquiry has already set out its views on the circumstances in which

the statements of both Sgt Galvin and Gda Clancy came to be made and it is unnecessary

to revisit those questions again here. However, it is absolutely clear that, however it arose,

there is a material inconsistency between the statements concerned and the CCTV footage.

Sgt Galvin’s statement suggests that, as the garda van approached the bus station, Ms

Stewart was “on the footpath on the left hand side of the road..”. Likewise Gda Clancy

stated that, as the van got near the bus station, he “saw Sheena Stewart standing on the

footpath”. However, the CCTV footage makes clear that, as the van approached the

relevant part of the roadway, Ms Stewart was lying on the road at a time after the van’s

brake lights are on but that she got up quickly and went to the footpath.

12.141 At the time when the initial decision which is the subject of this issue was taken

(which occurred, as already noted, at a review on the 12th February) those involved, being

SIO Leeman and IO Gallagher, had both the statements and the CCTV footage available

to them. It also needs to be noted that the discrepancy related to a matter which was of

some importance to the GSOC investigation. The focus of that investigation in whatever

guise it might have been conducted (and without prejudice to the dispute as to whether an

investigation under s.98 was warranted on the information available at the time that the

decision to designate was taken) was on the conduct of those members of An Garda

Síochána who had contact with Sheena Stewart for the purposes of ascertaining whether

greater action should have been taken, in all the circumstances, to ensure that Ms Stewart

was not a danger to herself or to road users. The reasons why there was at least cause for

concern in that regard have already been set out in the course of this Report. Concerned

members of the public had felt sufficiently worried about the situation to contact An

Garda Síochána. It follows that the assessment of those members who had contact with

Sheena Stewart, after the receipt of those calls from concerned members of the public, as

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to Ms Stewart’s state was an important part of any inquiry or investigation which might be

conducted. That is so not least because it was in those very same circumstances, lying on

the roadway, that, tragically, Ms Stewart met her death some short time thereafter.

Therefore, on any view, material relevant to the question of whether members of An Garda

Síochána ought to have had greater concern for Ms Stewart’s wellbeing and ought,

potentially, have acted differently because of that greater concern was clearly a central issue

for consideration.

12.142 In that context the question of whether Sgt Galvin and Gda Clancy might be said

to have actually come across Ms Stewart lying in the roadway in the circumstances disclosed

by the CCTV footage but not have referred to that fact in their statements was, in the

Inquiry’s view, a matter which GSOC was fully entitled to investigate. We now know, of

course, that explanations were given both by Sgt Galvin and by Gda Clancy, which

persuaded IO Gallagher to a sufficient extent to warrant his decision not to recommend

any prosecution and which also persuaded GSOC’s legal advisors to concur with that

recommendation. But as has been pointed out on a number of occasions earlier the purpose

of an investigation is to inquire into matters and no particular end point to an investigation

can necessarily be predicted before the investigation itself has taken place. The fact that

satisfactory explanations were ultimately given does not take away from the fact that it was

reasonable for GSOC to require such explanations in the light of the discrepancy between

the statements and the CCTV footage.

12.143 Furthermore, had it transpired that either or both Sgt Galvin or Gda Clancy had

not given a convincing explanation for the discrepancy, it was well within the bounds of

possibility that a conclusion might have been reached that the original statements, rather

than being mistaken as to Ms Stewart’s location as the van approached for

understandable reasons, might have been considered to have been designed to

deliberately underplay the extent to which the officers concerned ought to have had

legitimate concern about Ms Stewart’s wellbeing. It should be emphasised that no such

conclusion was ever reached and it would be wrong to give the impression that there is

any basis for concluding that the explanations given did not fully satisfy the legitimate

inquiries raised by GSOC. But before those explanations were given the situation was

different. There was at least a material possibility that the explanations might turn out not

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to be satisfactory and that adverse conclusions about why the statements did not correctly

describe the situation might have been reached. In such circumstances, had the

explanations not been satisfactory, it remained a possibility that a conclusion could have

been reached to the effect that there was a deliberate understatement contained in the

statements thus leading to the possibility that a criminal offence might have been

committed.

12.144 Against that background the Inquiry is satisfied that the decision to extend the

inquiry, taken on the 12th February, was reasonable in the light of the information available

at that time. Until a satisfactory explanation for the discrepancy between the statements

and the CCTV footage was given, there was a realistic possibility that a conclusion might

be reached that the statements were designed to deliberately downplay the extent to which

it might be said that the members concerned ought to have had a greater level of concern

for Ms Stewart’s safety. Had that turned out to be the case the possibility of consideration

having to be given for a criminal prosecution could not have been ruled out and in those

circumstances it was, in the Inquiry’s view, also reasonable for the GSOC officers

concerned to decide to conduct the respective interviews under caution. The fact that

satisfactory explanations were ultimately given does not change the circumstances which

prevailed at the time when the decision to extend the investigation and to conduct

interviews under caution was taken. That decision must be viewed on the basis of the

information available at the time it was taken and, for the reasons already addressed, at that

time there was a reasonable basis both for the extension of the investigation and the

decision to conduct interviews under caution.


12.145 The Inquiry is satisfied that the decision to extend the Inquiry, taken on the 12th

February, to one involving possible offences of making false and misleading statements or

perverting the course of justice was a decision which was reasonable in the light of the

information available at that time. Until a satisfactory explanation was given for the

discrepancy between the statements made by Sgt Galvin and Gda Clancy, on the one hand,

and CCTV footage, on the other, there was a realistic possibility that a conclusion might

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be reached that the statements were designed to deliberately downplay the extent to which

it might be said the members concerned ought to have had a greater level of concern for

Ms Stewart’s safety.

12.146 It should be noted that satisfactory explanations were ultimately given but that does

not, in the Inquiry’s view, change the circumstances which prevailed at the time when the

decision to extend the investigation was taken. For like reasons the Inquiry is satisfied that

it was prudent, in all the circumstances, for the interviews in question to be conducted

under caution.

(iv) The releasing of information concerning the status of the GSOC investigation.

(a) Submissions of the parties:

12.147 The background to these submissions stems from the fact that, after the death of

Sgt Galvin, GSOC released information relating to the status of the investigation into garda

conduct with Ms Sheena Stewart and in particular the status of the investigation insofar as

it related to Sgt Galvin. It was accepted on all sides that one highly unfortunate aspect of

the manner in which that information was released concerned the fact that information

came into the hands of certain members of the media before that same information

reached the Galvin family and, indeed, the colleagues and friends of Sgt Galvin. In addition

it seems likely that some of the information which came to the Galvin family by that

indirect route was, at least to some extent, not strictly speaking accurate.

12.148 Against that background Counsel for An Garda Síochána submitted that the

manner in which GSOC handled this aspect of the matter was mismanaged. Insofar as the

information which came to the Galvin family was inaccurate it was argued that this was as

a consequence of the method adopted for relaying the information concerned and in

particular the fact that, it was said, insufficient efforts were made to ensure that the Galvin

family were informed of accurate information in advance of any information being given

to the press.

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12.149 The submissions made on behalf of the extended Galvin family were broadly to

the same effect.

12.150 On behalf of the GSOC designated officers it was submitted first that the decision

to release the information concerned was made in good faith and for the purposes of

seeking to avoid further stress on the Galvin family which might have been occasioned

should media reports have appeared to the effect that Sgt Galvin might have been guilty of

some offence. It was accepted that the strategy involved had backfired spectacularly. It

was said that the decision in principle to release information was, therefore, justified in all

the circumstances of the case even though it was accepted that it was not normal GSOC

practice to issue information about an investigation which had not reached its final

conclusion. It was also submitted that, while the sequencing of the giving of information

to the media and communication with the Galvin family did not work out as planned,

nonetheless regard should be had to the fact that SIO Croke (acting on the instructions of

DDI Wright) made repeated efforts over five hours to get information through to the

Galvin family but unfortunately failed. In that regard attention was also drawn to the

evidence which suggested that it had been made clear to GSOC at the time in question that

direct contact with the Galvin family would not be welcomed. The method sought to be

used for that contact was, therefore, through An Garda Síochána which was said to have

been an appropriate method in the circumstances.


12.151 The narrow focus of this issue has already been addressed earlier in this Report.

For the reasons explained in some detail the only issue which requires to be considered is

whether any designated officer of GSOC could be said to be culpable in respect of what

turned out to be the most unfortunate event that information released by GSOC came

second or third hand to the Galvin family prior to GSOC having managed to make contact.

As noted earlier it seems likely that that sequence of events contributed to a level of

misunderstanding about the actual status of the GSOC investigation. As also noted earlier

there can be no doubt but that the way in which those events unfolded caused very

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considerable distress indeed to the Galvin family and to the friends and colleagues of Sgt

Galvin.

12.152 The Inquiry has already expressed its view that the general decision taken to the

effect that it might prove necessary in certain circumstances to break with what would have

been the almost universal practice of GSOC in the past and make comment on an

investigation which had not reached a formal conclusion was one which, in the very

unusual circumstances which prevailed, was reasonable. It is also appropriate to note that,

at the time that decision was taken, it was agreed that it would be necessary to inform all

interested parties in the event that it should prove necessary to give public information on

the status of the investigation. The issue does not, therefore, in the Inquiry’s view, turn on

whether information might have needed to have been given out but rather whether more

care should have been taken to ensure that the Galvin family received a detailed and

accurate account of the precise situation before information was given out to other sources.

12.153 It is proposed to start by dealing with one minor issue which arose tangentially in

the course of the hearings where it was suggested that the timing of the public statements

was inappropriate given that it was a very fraught time for the family, friends and colleagues

of Sgt Galvin. However, in that context, it does have to be said that the evidence suggests

that coverage of the events surrounding Sgt Galvin’s tragic death and the fact that he was

the subject of a GSOC investigation at that time appeared highly likely to be about to come

immediately to the fore so that the timing generally was, in the Inquiry’s view, largely taken

out of GSOC’s hands.

12.154 The Inquiry is also mindful of the fact that, as already noted, it was clear to senior

GSOC officials that direct contact with the Galvin family would not be welcome. It follows

that it was reasonable for those involved to seek to contact the Galvin family though the

medium of An Garda Síochána. The unfortunate, but it would appear entirely accidental,

circumstances in which it took quite some time for that contact to be actually made have

already been set out. It does not seem to the Inquiry that any blame or criticism can be

attached to those involved on the GSOC side for the fact that it proved difficult, and thus

gave rise to some delay, to make contact.

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12.155 However, it does seem to the Inquiry that it would have been appropriate for

greater care to have been exercised to ensure, to the greatest extent possible, that actual

contact had been made with the Galvin family and accurate information conveyed to them

through whatever channels could be established, before any information was given to the

media. The Inquiry is mindful of the fact that, given the relevantly fast-moving situation

which appeared to be in place on the ground, it might not have proved possible to have

made contact - however indirect - with the Galvin family in advance of a time when a

reasonable judgement might have been formed so that it was necessary to make some

comment to the media to avoid potentially inaccurate speculation appearing concerning

Sgt Galvin. It might not, therefore, have proved possible to avoid the unfortunate situation

which ultimately came about. However, the Inquiry is of the view that it would have been

significantly preferable if greater co-ordination had taken place to at least maximise the

likelihood that information was not imparted to the media before there had been sufficient

contact with the Galvin family.

12.156 That being said the Inquiry is mindful of the fact that all concerned were involved

in a difficult and fast- evolving situation. The Inquiry got the impression from relevant

GSOC personnel that, in reality, no one had considered the need for sequencing and how

that might best be achieved. While acknowledging, therefore, that more could and should

have been done to at least seek to ensure that the Galvin family was properly briefed in

advance of any media information being disseminated, the Inquiry cannot conclude that it

would, in all the circumstances, be appropriate to level specific criticism at any GSOC

designated officers in that regard, not least because of the fraught, difficult and fast moving

situation with which all were concerned. While the specific finding in that regard which is

within the remit of the Inquiry can relate only to those GSOC designated officers involved

(in particular SIO Croke) the Inquiry would also wish to record (lest by not so doing an

inference to the contrary might be drawn) that it does not consider that Ms Lee could be

the subject of any legitimate adverse finding as well.

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(c) Summary of Conclusions and Recommendations

12.157 The Inquiry notes the limited nature of its remit under this heading. The Inquiry

is only entitled to consider the conduct of designated officers. Therefore, the Inquiry is

concerned to determine whether any GSOC designated officer might be said to have been

at fault in the way in which information concerning the status of the investigation into Sgt

Galvin arising out of the death of Ms Sheena Stewart was given to the media and, in

particular, the fact that that information was given prior to the Galvin family being briefed.

12.158 The Inquiry is satisfied that it was reasonable, in all the circumstances, for GSOC

to give information to the media but concludes that it would have been “significantly

preferable” if greater coordination had taken place to at least maximise the likelihood that

information was not imparted to the media before there had been sufficient contact with

the Galvin family. The Inquiry has noted the extreme distress which this sequence of

events caused for the family, friends and colleagues of Sgt Galvin. The Inquiry is also of

the view that the sequence of events in question has contributed to some of the

misinformation which gained currency surrounding the GSOC investigation.

12.159 The Inquiry has concluded that, while acknowledging that more could and should

have been done to at least ensure that the Galvin family were properly briefed in advance

of any media information being disseminated, it would in all the circumstances not be

appropriate to level specific personal criticism at any GSOC designated officers in that

regard. The Inquiry has reached that view not least because of the extremely charged

circumstances then prevailing. The Inquiry also notes that, while the specific findings

under this heading relate only to relevant GSOC designated officers, it is appropriate to

record, lest by not so doing an inference to the contrary might be drawn, that it does not

consider that Ms Lee of the GSOC press office could be the subject of any legitimate

adverse findings either.

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(v) Communications Generally

(a) Submissions on behalf of the parties:

12.160 The positions adopted by the parties in respect of this issue were necessarily more

broadly based than the positions adopted in respect of more specific issues. This was

understandable given the general nature of the issue itself. The submissions of the parties

in respect of some of the specific issues which arose under this heading have already been

noted in the context of other issues. There was, of course, the issue concerning the extent

to which sufficient information was imparted to Insp Joyce in Ballyshannon garda station

on the 1st January so as to lead Insp Joyce to understand that a criminal investigation had

been designated and that Sgt Doyle, Sgt Galvin and Gda Clancy were the subject of that

investigation. The fact that the formal notification to An Garda Síochána of the existence

of such a criminal investigation, and of the identity of the gardaí who were the subject

thereof, was made through normal channels for onward transmission to the gardaí

concerned but that the relevant information was deleted, by error, in Letterkenny divisional

office, has also been addressed.

12.161 However, there seemed to be a broad acceptance by all parties that, at least in

general terms, it was important, not least for the avoidance of misunderstanding, that there

be the maximum possible information available to members of An Garda Síochána as to

the normal practice likely to be followed in the course of a GSOC investigation. The

Inquiry will address some of the general issues which arise in that context in due course.

The Inquiry remains mindful of the submission made by Counsel for GSOC to the effect

that the Inquiry should be careful not to make overbroad recommendations arising out of

a consideration of the circumstances of a single case. The Inquiry is also mindful of the

submission made on behalf of An Garda Síochána which drew attention to the fact that

the error which occurred in the Letterkenny divisional office, leading to the deletion of the

email which ought to have led to the formal notification of the three members concerned

of the existence of the investigation, appeared to be a once-off event which should not lead

to any recommendation for a change in practice.

12.162 On the other hand the Inquiry was also required to take into account the evidence

of a number of GSOC designated officers that less serious problems had been encountered

134

in the past in relation to delay in the notification of members of the gardaí who were the

subject of a s.98 investigation such that, on occasion, those gardaí were contacted by GSOC

designated officers prior to receiving a formal notification of the existence of the

investigation concerned. In that context a number of the GSOC witnesses suggested that

it would be preferable if GSOC were directly involved in the notifications in question.


12.163 The issues which arise under this heading are more general than the specific

questions which were required to be addressed in the context of the other issues identified.

In the Inquiry’s view the single most striking feature of the evidence heard was the very

strong impression that, both at a general and a specific level, there was a material lack of

information and understanding among members of An Garda Síochána about the precise

way in which GSOC operated and also about aspects of this specific inquiry.

12.164 The Inquiry is mindful of the fact, as has already been noted, that there may be

dangers in attempting to draw conclusions which are overbroad based on a consideration

of evidence and materials which were, necessarily, confined to one specific GSOC

investigation. It does also need to be noted that at least one important aspect of the lack

of communication which occurred in this case (the deleted email) appears to be very much

specific to the facts of the investigation into the death of Sheena Stewart and may have

limited broader implications. Nonetheless it would appear that some of the more general

issues which arose stem from what appears to be normal practice rather than anything

unusual which occurred in this particular investigation. In those circumstances it is at least

possible to draw some broad conclusions and make some tentative recommendations.

12.165 The single most striking lack of communication identified was the fact that none

of the three gardaí who were identified right from the beginning as being the subject of

what GSOC felt it appropriate to designate as a criminal investigation were initially, in fact,

made aware of the fact either that there was a criminal investigation or that they were

identified as being the subject of that investigation. As already noted the first that either

135

Sgt Galvin or Gda Clancy heard of the matter was when they were contacted about the fact

that they were required to attend for a cautioned interview.

12.166 Sgt Doyle was the third member of An Garda Síochána who was under

investigation by GSOC. He had been nominated by Supt Finan in the document entitled

“Annex 1” submitted by him in respect of the s.102 referral on the 1st of January 2015 and

he was named by IO Gallagher in his notification letter of the 25th of January 2015. Neither

of these documents were brought to Sgt Doyle’s attention. Sgt Doyle confirmed, both in

his direct evidence and when cross-examined, that he did not know that his statement

would be used by GSOC and that he was not aware of a GSOC criminal investigation but

only a preliminary investigation into the facts surrounding the death of Ms Stewart. He also

confirmed that he was not aware that he was under investigation and was surprised to learn

that he had been under investigation. Indeed Sgt Doyle did not discover that he had been

actually under investigation by GSOC until after the funeral of Sgt Galvin. Shortly after the

funeral Sgt Doyle learned from Supt Nevin that SIO Groenewald had informed Supt Nevin

that Sgt Doyle was no longer under investigation.

12.167 SIO Groenewald in his direct evidence to the Inquiry said that DDI Wright

contacted him on the 1st June, 2015 and instructed him to make contact with Gda Clancy

and Sgt Doyle in that regard. IO Gallagher, in an email to DDI Wright, had previously

suggested that Gda Clancy and Sgt Doyle should be notified personally that there was

insufficient evidence of any criminal wrongdoing in the case and that the GSOC

recommendation to the DPP would be to that effect. SIO Groenewald relayed this

information to Supt Nevin who relayed same to Sgt Doyle. It was accepted in evidence that

this was not the usual practice for notifying members. It is worthy of note that Sgt Doyle

has not to date received any kind of written confirmation from GSOC in respect of any

aspect of the investigation nor has he ever been in direct contact with GSOC.

12.168 The Inquiry has already commented on aspects of the circumstances which led to

that unfortunate state of affairs. First there was the meeting at Ballyshannon garda station

on the 1st January when the fact of a criminal investigation was not, in the Inquiry’s view,

effectively communicated by the GSOC officers involved although, as the Inquiry has also

noted, it is accepted that those officers used language which they believed had

136

communicated the fact of a criminal inquiry. Next there is the fact that a formal

notification was not sent to An Garda Síochána until the 26th of January 2015. There is a

weekly log of s.102 referrals sent from GSOC to An Garda Síochána in the form of an

Excel spreadsheet which contains brief details of each referral which has been made. One

such log was sent by GSOC to An Garda Síochána on the 7th of January 2015, which

contained reference to the s.102 referral that had been made by Supt Finan on the 1st of

January 2015. Chief Supt Seán Ward of An Garda Síochána, in a letter to the Inquiry dated

the30th of September 2015, stated that this log is a briefing document pertaining to Section

102 referrals for the information of the Commissioner and that it has never been accepted

as the formal notification of the designation of a s.102 referral as a s.98 investigation.

12.169 On the 12th of January 2015, IO Gallagher sought the PULSE log in respect of

Sheena Stewart through the Gearáin system. He was informed by a member of the Gearáin

office that there had been no formal notification of the existence of a s.98 investigation

received by An Garda Síochána. Ultimately, on foot of those communications, Sgt Gray

of the Gearáin office spoke to David Smullen of GSOC and the issue was resolved by way

of an assurance that correspondence would issue in due course to confirm the s.98

investigation. The materials sought by IO Gallagher were provided on the basis of that

assurance. It was in response to this exchange that the formal letter of notification was

sent to Garda Internal Affairs on the 26th of January.

12.170 While some fault may be laid on the GSOC side in respect of the lack of early

notification arising out of those matters it seems to the Inquiry to be clear that the principal

reason why the three gardaí concerned were unaware for a prolonged period of the true

situation must be laid on An Garda Síochána themselves. In that context it requires to be

noted that the position of An Garda Síochána is that the proper means for notifying a

member of the force that they are the subject of a criminal inquiry is through the channels

identified in the Protocol. Indeed, in the closing submissions made on their behalf, An

Garda Síochána strongly suggested that that means of communication was not only the

correct existing means but also was one which should be maintained so that the Inquiry

was urged not to make any recommendation which might suggest otherwise. It is, in those

circumstances, in the Inquiry’s view, fair to say that the means of communication with

individual members of An Garda Síochána adopted in this case was one which is in place

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at the insistence of senior garda management. It is also the case that that means of

communication failed in this case due to the deletion of the email communicating the

information concerned which deletion occurred in the Divisional Office, Letterkenny.

12.171 There was, quite frankly, a lack of clarity about precisely how the relevant email

came to be deleted. It would appear that there had been a change in practice over recent

times as to how such matters were communicated to divisional headquarters. Supt Louise

Synott of Garda Internal Affairs gave evidence to the Inquiry that the system had

previously been that a follow up hard copy letter of that same notification would be sent.

However from about October 2014 onwards the system was modified so that the

notification was only sent by email. The rational for this practice was to speed up the

notification process and ensure the timely scheduling of appointments following on from

notification. Supt Synott outlined that the staff in the divisional offices would be aware

that the notifications were coming and would record and process them in accordance with

whatever practices were normal in the respective divisional offices. Following on from the

events the subject matter of this Inquiry, that system was modified once again so that the

email notification is now followed up with a hard copy of the letter. That progression

seems entirely sensible. However, it would not appear that everyone in senior garda

management was aware of the changes. For instance Chief Supt McGinn in her evidence

to the Inquiry stated that generally a hard copy version of the notification would be sent

from GSOC following the notification email in the internal post within An Garda Síochána.

She noted that on this occasion no hard copy version of the correspondence from GSOC

dated 26th January was sent to her office. Chief Supt McGinn further expressed the view

that there was an obligation on GSOC, as set out in S. 103(1)(b) of the 2005 Act, to keep

members involved aware of the progress and results of their investigation and that this did

not happen in this case.

12.172 Moreover, Chief Supt McGinn said that she expected, as the head of the relevant

division, that she also would have been informed that members of An Garda Síochána

were under investigation. In fact, Chief Supt McGinn was not aware that the relevant

members were subject to a s. 98 investigation until the day before Sgt Galvin died. She

happened to be in Ballyshannon Garda Station that day and Insp Joyce brought it to her

attention that Sgt Galvin was not coping very well with the GSOC investigation. Chief

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Supt McGinn was not aware until that conversation that the investigation was now a s. 98

investigation and she felt that she should have known about these serious allegations,

particularly as she was responsible for managing the division and for the deployment of

members.

12.173 However, it is clear that the reason why Chief Supt McGinn did not know of these

matters in a timely fashion was principally due to failings within An Garda Síochána and,

indeed, in particular, within her own divisional office.

12.174 The other questions which arise are, to a greater or lesser extent, somewhat more

general. In order to fully consider those issues it is necessary to set out the legal framework

within which the obligation to inform arises.

12.175 Section 88 of the 2005 Act states:

88.— (1) On determining under section 87 that a complaint is inadmissible the Ombudsman

Commission shall—

(a) notify, in writing, the complainant, the member of the Garda Síochána

whose conduct is the subject of the complaint and the Garda Commissioner of its

determination,

(b) include in the notification the reason for the determination, and (c) take

no further action in relation to the complaint.

(2) On determining under section 87 that a complaint is admissible, the Ombudsman

Commission shall as soon as practicable—

(a) notify, in writing, the complainant and the Garda Commissioner of its

determination, and

(b) where the complaint was made directly to the Commission, send the Garda

Commissioner a copy of the complaint or, if the complaint was not made in writing, a copy

of the record of the complaint.

http://www.irishstatutebook.ie/2005/en/act/pub/0020/sec0087.html#sec87






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(3) On being notified of an admissible complaint concerning the conduct of a member of the

Garda Síochána, the Garda Commissioner shall, subject to section 89 (1)(b), notify the member

that a complaint has been made and specify the nature of the complaint and the name of the

complainant.

12.176 Section 103 of the 2005 Act states:

103.— (1) The Ombudsman Commission shall provide the following persons with sufficient

information to keep them informed of the progress and results of an investigation under this Part:

(a) if the investigation resulted from a complaint—

(i) the complainant,

(ii) the member of the Garda Síochána whose conduct is the subject matter of the

complaint,

(iii) the Garda Commissioner, and

(iv) any other person that the Commission considers has a sufficient interest in the matter;

(b) if the investigation is one to which section 102 applies—

(i) the member of the Garda Síochána whose conduct is the subject matter of the

investigation,

(ii) the Garda Commissioner,

(iii) the Minister, and

(iv) any other person that the Commission considers has a sufficient interest in the matter.

(2) The duties imposed by subsection (1) do not extend to requiring the Ombudsman

Commission to provide information the disclosure of which would, in its opinion—

(a) prejudice a criminal investigation or prosecution,







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(b) jeopardise a person’s safety, or

(c) for any other reason not be in the public interest.

12.177 The Protocol is also instructive, particularly the notification provisions contained

in section 7.4:-

“7.4 Ongoing notification of progress on complaints, referrals and other investigations -

sections 87 and 88 of the Act refer

7.4.1 Notification by GSOC to the Commissioner of An Garda Síochána of admission,

nonadmission or general progress of complaints shall be through Assistant Commissioner,

Human Resource Management, and will be furnished, in writing, by the Director of

Operations or on his behalf.

7.4.2 GSOC acknowledges that the Commissioner of An Garda Síochána is responsible for the

management of a disciplined force and, in the exercise of that role, he/she needs to be

informed, regularly and comprehensively, as to the progress and results of complaints,

referrals and other investigations.

7.4.3 Both parties are mindful of the obligations on GSOC, under section 103 of the Act, to

keep the Commissioner of An Garda Síochána informed of the progress and results of

GSOC investigations, and also of the reliance of the Commissioner of An Garda Síochána

on these reports in managing a disciplined force. Accordingly, both parties agree that the

office of the Director of Operations and the office of Assistant Commissioner, Human

Resource Management, will work closely to facilitate, and improve, the transmission and

quality of information supplied by GSOC to the Commissioner of An

Garda Síochána under section 103 of the Act. Both parties note the facility available to

GSOC to disclose information to the Commissioner of An Garda Síochána under section

81(4)(a)(i), of the Act.

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7.4.4 In investigations carried out by GSOC, under section 98 of the Act, GSOC will inform

the Commissioner of An Garda Síochána of the names and details of the Garda Síochána

members who have been identified as being subject of the complaint or the investigation.

7.4.5 The Commissioner of An Garda Síochána will provide the necessary notifications, under

section 88 of the Act, to the members concerned and will notify GSOC of the members

identified, where practicable. GSOC will inform the Commissioner of An Garda Síochána

if any of the members notified are not subject of the complaint.

7.4.6 The Commissioner of An Garda Síochána will provide reasonable assistance to identify

members who may be subject of a complaint or investigation.

7.4.7 A standard notification will be provided to all members identified subject of a complaint

being investigated by GSOC pursuant to section 98 of the Act, which will state the name

of the complainant; the nature of the complaint; and, where possible, appropriate contact

details in relation to the GSOC D/O.

7.4.8 All notifications will be signed, as received, by the Garda member who is to be notified.

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7.4.9 In section 102 referrals, GSOC will inform the Commissioner of An Garda Síochána

of the identity of any member whose conduct is subject of the investigation. Similarly, a

standard notification will issue, pursuant to section 88 of the Act, to all members

identified, which will state the details of the section 102 referral, the section under which

the investigation is being conducted, and, where possible, appropriate contact details in

relation to the GSOC D/O.”

12.178 It is also of some relevance to note that the 2005 Act makes express provision for

a protocol between GSOC and An Garda Síochána in section 108 of the Act, which

provides:-

“108.— As soon as practicable after the commencement of this section, the Ombudsman

Commission and the Garda Commissioner shall, by written protocols, make arrangements

concerning the following matters:

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(a) the use of detention facilities at Garda Síochána stations by designated officers of

the Ombudsman Commission for the purpose of exercising their powers and

carrying out their duties under section 98;

(b) the application of the Criminal Justice Act 1984 (Treatment of Persons in

Custody in Garda Stations) Regulations 1987 (S.I. No. 119 of 1987) when

those detention facilities are used by designated officers for the purpose referred to

in paragraph (a);

(c) the handling of any investigations by the Ombudsman Commission under this

Act that coincide with investigations by the Garda Síochána into the same

matters;

(d) the sharing with each other of information (including evidence of offences) obtained

by either the Ombudsman Commission or the Garda Commissioner.”

12.179 It is clear from that section that one of the types of protocol contemplated by the

Act itself is one whose principal focus is to ensure that parallel investigations being

conducted by An Garda Síochána and GSOC arising out of the same general circumstances

are conducted in a manner which minimises any risk of those investigations interfering with

each other. While those matters are dealt with in the Protocol it is also clear that the

Protocol deals with many other matters as well. The Inquiry would wish to make clear that

it is in no way suggesting that it is inappropriate for GSOC and An Garda Síochána to

agree protocols which go beyond the scope of that required by section 108 of the Act. It

obviously makes sense that there are agreed methodologies for the conduct of GSOC

inquiries insofar as they might impact on An Garda Síochána generally. The Inquiry would,

however, suggest that there may be some merit in separating into separate protocols those

matters which are specifically mandated by the 2005 Act as being required to be the subject

of a protocol, on the one hand, and those matters which involve an agreement outside the

scope of that statutorily mandated protocol, on the other hand.

12.180 The Inquiry understands from the evidence that there was little or no legal

involvement in the drafting of the Protocol concerned. While some of the matters dealt

with can be described as purely operational and might reasonably be considered not to

require legal input, it is clear that some of the matters involve the exercise of statutory

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powers often of significant importance. In those circumstances it would, in the Inquiry’s

view, be preferable if there was at least some legal involvement in the finalisation of those

aspects of any protocol which involved formal legal powers.

12.181 Against that background a number of important aspects of the legal framework are

clear. First there is an express obligation on GSOC to keep both An Garda Síochána and

any individual member concerned appraised of developments in any relevant investigation.

There is, however, an important exception to that obligation which allows GSOC to refrain

from giving information which might, at the relevant time, impair a GSOC investigation.

Thus legitimate operational reasons can, quite sensibly, provide a good reason for keeping

information confidential at least for the time being. That latter point is of importance in

considering the overall structure of the legal framework although it needs to be emphasised

that there was no suggestion, on the facts of this inquiry, that there was any basis for any

particular information not being imparted at any particular time for such reasons. While,

therefore, generally relevant, the operational exception is not specifically relevant to the

facts of this case.

12.182 It is important to emphasise that the obligation to inform a member concerned is

a separate obligation placed by the 2005 Act itself on GSOC in addition to the obligation

to keep An Garda Síochána informed. That provision again makes sense. In basic fairness

a member is entitled, subject to the sort of operational exception to which reference has

already been made, to be kept reasonably appraised of the progress of an investigation

which might affect their rights. But equally An Garda Síochána, as an organisation, through

its senior management, needs to know the status of an investigation into an individual

member not least because it may be necessary to consider how that member should be

deployed in the light of the issues raised by the investigation.

12.183 While the provisions of the Protocol are not free from ambiguity, it is clear that

the method which has been accepted as agreed, to date, for complying with the obligation

to inform an individual member of the existence of a s.98 investigation has been through

the central notification system already addressed. While it is also true that that system did

not work in the particular circumstances of this case, it is fair to say, as was urged by counsel

for An Garda Síochána, that the failure identified in this case seems to have been something

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of a one-off and should not, in and of itself, lead to the view that that system does not

work.

12.184 However, there seems to the Inquiry to be other reasons why a review of that

system should be adopted. First the Inquiry should say that it would appear that a most

fundamental aspect of the obligation to keep a member informed of a criminal inquiry

involves informing the relevant member that the inquiry has come into being in the first

place. It would be a strange interpretation of the section if it were not to be so construed

for it would mean that there was a statutory obligation on GSOC to tell a member, subject

to the operational exception, of each material step along the way but not to tell the member

of the first step. It seems to the Inquiry to follow that, again subject to the operational

exception, a member should be informed as soon as practicable of the fact that a criminal

inquiry has been designated and that the member concerned is the subject of that inquiry.

After all, the fact of the designation of an inquiry under s.98 as a criminal inquiry carries

with it, as has been pointed out, very significant powers. Unless there is good reason to

the contrary a person who is the subject of such an inquiry should know about it as soon

as practicable. The Inquiry is mindful of the point made on behalf of An Garda Síochána,

in arguing for the retention of the current system, that there may be an advantage in a

senior line officer being the person who communicates the fact of an investigation to a

member concerned which derives from the ability of that senior officer to put in place

whatever support mechanisms or advice might be considered appropriate. While the point

made is undoubtedly relevant it does not seem to the Inquiry to be decisive.

12.185 Ultimately, the obligation to inform the individual member lies on GSOC. That

obligation is separate from the obligation which lies on GSOC to inform senior

management. Indeed the Inquiry was struck, in that context, by the submissions made on

behalf of An Garda Síochána in an admittedly slightly different context. As part of the

argument on the question of the initial inquiries conducted by GSOC it was, as already

noted, argued on behalf of An Garda Síochána that GSOC had largely delegated those

inquiries to An Garda Síochána itself. The Inquiry’s view on that issue has already been

set out. However, one of the points made was that, having delegated that responsibility,

GSOC was, as it were, stuck with the consequences. While acknowledging that that

argument was made in the context of a materially different type of issue there is,

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nonetheless, something of an inconsistency between that argument and the suggestion that

GSOC should be required to delegate its clear statutory obligation to inform an individual

member to garda management.

12.186 Be that as it may the Inquiry is of the view that the combined effect of the express

statutory requirement on GSOC to inform a member coupled with the Inquiry’s view that

that task should be completed as soon as practicable leads to the view that it would be

more appropriate if GSOC were to make arrangements to inform a relevant member

directly rather than to do so through An Garda Síochána. It would, of course, be also

incumbent on GSOC, in accordance with the same legislation, to separately inform garda

management. In addition, the Inquiry sees no reason why appropriate arrangements,

whether by protocol or otherwise, could not be worked out to ensure that an appropriate

senior garda was present when the member was informed by GSOC so that the senior

officer on the ground could take whatever steps, either by way of support or advice or in

relation to operational matters, that might be considered necessary.

12.187 It does not seem to the Inquiry that this would impose any significant administrative

burden. The Inquiry notes, for example, that so far as a request to An Garda Síochána by

GSOC for documents and materials is concerned, GSOC officers have a standard form

which can simply be filled in and handed over. It should not prove too difficult to devise

an appropriate standard form for notifying an individual member of a relevant criminal

investigation which could be filled in as appropriate by relevant GSOC officials. Such a

form or document would also provide an opportunity to impart general information

concerning GSOC inquiries including contact points, general procedures and the like in a

form which ought to be readily understandable by any garda concerned. This could

minimise the risk of a repetition of what appears to have happened in Ballyshannon garda

station on the evening of the 1st January where information was imparted by GSOC

officials in a form which was not fully understood by a senior garda officer.

12.188 The next issue which arises concerns the application of the undoubted obligation

on GSOC to keep, amongst others, a member concerned up to date on any investigation.

While all GSOC witnesses acknowledged the clear statutory obligation to keep members

informed of the progress of investigations it was by no means clear to the Inquiry that there

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was a common understanding by those witnesses as to when that obligation might, in

practice, arise. For instance SIO Groenewald in his evidence said that, if a file were to

come back from the DPP with a recommendation that there was to be no prosecution,

GSOC would simply send a standard letter to the relevant member to say that a file had

been sent to the DPP but that there would be no prosecution and that GSOC would not

intend to take further action in relation to their case. He further understood that the

notification to members of the existence of an investigation was a function of the Garda

Commissioner, not for GSOC. Moreover, under s. 103 of the 2005 Act he was aware of

the duty to keep members involved and felt that this could be done through a variety of

ways. It could be done by phone, in person or in writing.

12.189 SIO Harden also discussed the obligation to keep members abreast of the

investigation. He felt that, if an investigation was progressing well, there might be no need

to tell the members as there might be nothing to tell them.

12.190 Commissioner Fitzgerald also felt that the method of delivering updates under s.

103 could vary from email to letter to phone call.

12.191 DI Isaac also thought that any notification of the existence of an investigation to a

member is the responsibility of the Commissioner of An Garda Síochána. He felt that, in

respect of notifying the members of progress of an investigation, as prescribed under s.

103, the requirement was that significant progress should be notified and gave the example

of a file being sent to the DPP or the conducting of an interview under caution. He noted

that progress was not defined in the Act and accepted that the legislation did not say

significant progress. He felt that the taking of a statement was not progress and

differentiated between progress and “investigative steps of an investigation”. He felt that

progress was something that the lead investigator in each case had to make a judgment call

on.

12.192 IO Gallagher felt that it was the responsibility of the Senior Investigation Officer

to decide what information to impart to a member under investigation. He also

differentiated between what he saw as progress and significant progress. He felt that the

decision to interview members was significant progress. He also noted that s. 103 did not

dictate the manner in which communication of such progress was to be conducted.

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12.193 DDI Wright also felt that it was the responsibility of the Garda Commissioner to

notify members of the existence of an investigation. He felt that the duty under s. 103

required members to be informed of “milestones” in the investigation. He also noted that

s. 103 was silent on the format of updates. He said it could be a letter, a phone call, a text

message or an email. He said that this could also include a member calling GSOC.

12.194 SIO Croke believed that progress entailed key phases of the investigation, that a

report had been finalised, or that significant lines of inquiry had been finalised.

12.195 The Inquiry is mindful of the valid point made on behalf of GSOC that it would

be difficult, if not impossible, to be prescriptive about how the obligation to keep a member

informed is to be implemented in the, doubtless, very differing circumstances of a whole

range of different types of investigation. It will, necessarily, remain a matter, to a large

extent, for the operational judgement of the GSOC officer leading the investigation

concerned. However, the overall impression gained by the Inquiry from the evidence was

that there was very little common understanding within GSOC as to the kind of

development in an inquiry which would warrant informing, subject to the operational

exception, the member concerned. The only common theme was that a member would be

informed if a file was sent to the DPP. That aspect of the investigation is a point to which

the Inquiry will turn.

12.196 It is beyond the scope of this Inquiry to make detailed recommendations as to how

further guidance might be given to GSOC designated officers as to the circumstances in

which appropriate information should be given to a member. Some witnesses used terms

such as “significant” in relation to the sort of developments which would require to be

notified although, again, there seemed to be little common understanding about what might

constitute such a “significant” development. It was argued on behalf of the extended

Galvin family and An Garda Síochána that the legislation does not use the word

“significant”. However, it is necessary to take a practical view of the statutory obligations

to keep informed. It can hardly have been the intention of the Oireachtas that a member

has to be informed every time a GSOC officer makes a phone call or writes a letter in the

context of a relevant investigation. A reasonable threshold of materiality must, in the

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Inquiry’s view, necessarily be implied into the statute as providing the threshold by

reference to which the obligation to inform must be determined.

12.197 The Inquiry therefore, recommends that GSOC should give consideration to

adopting guidance to its designated officers as to the sort of considerations which should

be taken into account in determining whether developments in an investigation have been

sufficiently material to warrant information being given to the member concerned. The

Inquiry accepts that the application of such guidance to the facts of any individual case will,

almost certainly, necessarily remain a matter for the operational judgement of the lead

investigator. However, the Inquiry is strongly of the view that a greater common

understanding of the factors to be taken into account in making that judgement would be

beneficial all round. The Inquiry is also of the view that it would help members of An

Garda Síochána to understand the process if such guidance were readily available so that a

member could reasonably assess when and what type of information they were likely to

receive in the course of an investigation. It is beyond the scope of this Inquiry to be specific

as to the details of any such guidance.

12.198 The one matter which all witnesses agreed would be notified to a member

concerned was the fact that a file had been sent to the DPP. It was also clear on the

evidence that GSOC had, from almost the beginning of its operation, an established policy,

determined at the level of the commissioners themselves, that in any case involving a death

after police contact, the matter would be referred to the DPP even where GSOC did not

consider that there was any basis for a possible criminal charge. As that policy was

determined by the commissioners it lies outside the scope of this inquiry. It is easy to

understand how it might be considered appropriate, even in cases where GSOC itself was

not convinced that a legitimate basis for a criminal prosecution existed, to have a review

conducted by the DPP for the purposes of obtaining a second opinion. Whether a policy

of seeking such a second opinion in all cases, irrespective of the evidence or materials

gathered, is quite as understandable is a separate question.

12.199 But for present purposes it is important to note that it seems that very few, if any,

members of An Garda Síochána would have been aware of the relevant policy. It is in

those circumstances that the notification of the fact that a file had been sent to the DPP

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needs to be considered. Gardaí will, of course, be more than familiar with the idea of a file

being submitted to the DPP. The gardaí submit such files on a regular basis as a result of

the conduct of ordinary criminal investigations. As was confirmed in evidence by senior

gardaí such files may involve a strong recommendation in favour of prosecution, may seek

further guidance adopting, perhaps, a more neutral attitude or may, indeed, indicate the

view of the gardaí that there is insufficient evidence to justify a prosecution but nonetheless

seek confirmation of that fact from the DPP. However, it would not appear to be the case

that the gardaí themselves would be likely, at least in most cases, to submit a file to the

DPP where no significant evidence or materials indicating a possible criminal offence had

been uncovered. It is against that background that the absence of any minimum threshold

for the reference of a file by GSOC to the DPP even where, likewise, no significant

evidence or materials indicating a criminal offence is discovered, should be judged.

12.200 Be that as it may, and in the light of the experience of the gardaí, it seems likely that

any member, on being told that a file had been submitted to the DPP but being unaware

of GSOC’s practice, would be likely to infer that GSOC had at least some basis for

considering that there was a possibility that a criminal prosecution might be considered

even if GSOC did not, itself, consider that there was sufficient evidence to justify such a

prosecution. In other words a member of An Garda Síochána, on being informed that a

file had gone to the DPP ,would be most unlikely to conclude that such action had been

taken simply because of a policy in that regard in cases involving death after garda contact

rather than because GSOC had reached the view that there was at least some possible basis

for prosecution. However, in that regard such a conclusion might well be wrong. No such

evidence might have been uncovered but a file might have been sent to the DPP

nonetheless in accordance with GSOC’s standing policy. A member of An Garda Síochána

who received notification of the fact of a reference of a file to the DPP in a case involving

the garda concerned but who was, like almost all gardaí, unaware of GSOC’s policy would,

therefore, have been potentially significantly misled by the information being imparted. It

is easy to see how such a situation could lead to unnecessary and inappropriate stress for a

member of An Garda Síochána in respect of whom no evidence of wrongdoing had been

uncovered. Between the period when such a member was informed that a file had been

sent to the DPP and the time when the DPP, as would almost certainly be the case,

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determined that there should be no prosecution, the member concerned would be likely to

be under a mistaken impression that the situation was a lot more serious than it actually

was. That situation seems to the Inquiry to be unfair.

12.201 But it is a situation which would not have pertained if there was sufficient

information available to gardaí, in a clear form, which made it likely that gardaí would both

have access to it and understand it, and which would have informed members that the

submission of a file to the DPP was standard policy in all cases such that no inference

should be drawn, one way or the other, concerning the status of the GSOC investigation.

A member of An Garda Síochána who knew the policy would be unlikely to read too much

into being informed that a file had gone to the DPP. A garda who did not know the policy

might reasonably, albeit inaccurately, reach a much more adverse conclusion concerning

the status of the investigation. That issue goes to illustrate the need for much clearer

communication for the absence of such information might well lead an exonerated garda

to a period of significant and unnecessary worry.

12.202 In that context it is appropriate to return to a point touched on much earlier in this

report. Mention was made of an information document which appeared on the website of

GSOC. As noted earlier the Inquiry concluded that the document concerned, while

inaccurate in a number of respects, did not disclose any relevant information about the

specific issues which were the subject of this inquiry. The inaccuracies were explained by

reference to the fact that a draft document, based at least in significant part on the

experience of GSOC designated officers who had previously worked for the Police

Ombudsman of Northern Ireland, had been used without that document being finalised

and in particular finalised in a way designed to reflect differences in the legislation and

practice as and between Northern Ireland and Ireland. The inaccuracies did not, on the

evidence, reflect any actual practice adopted in Ireland or any erroneous view by GSOC

designated officers as to the situation in Ireland. On that basis the Inquiry was not

persuaded that the document which appeared on the website was of any particular

relevance to the issues which are within its remit.

12.203 However, a document of that type, corrected for any inaccuracies, and potentially

expanded, would, in the Inquiry’s view, play an important role in minimising the risk of

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members of An Garda Síochána, who come to be the subject of GSOC inquiries,

misunderstanding the situation. It is almost inevitable that there will be some degree of

suspicion between investigators and those investigated. To expect that there would be an

entirely happy relationship between member of An Garda Síochána who may be the subject

of investigation and those GSOC designated officers who have to conduct the investigation

concerned, would be naively optimistic. However, it must surely be in the interest both of

GSOC and of both An Garda Síochána generally and members of An Garda Síochána

specifically, that any such natural tension is minimised by at least the greatest possible

understanding on all sides (and in particular on the side of individual gardaí) of the way in

which GSOC inquiries are generally conducted. Indeed it was well put by SIO Harden

when, in the course of his evidence, he indicated that he normally sought to speak to the

gardaí concerned at the earliest possible opportunity for the purposes of “trying to get over

the canteen gossip of what GSOC does”. (See the evidence of SIO Harden quoted above).

12.204 That comment suggests an understanding on the part of senior GSOC personnel

that, without such clarity, there is a serious risk that misinformation about the precise role

and operating methods of GSOC will persist and affect the way in which members of An

Garda Síochána respond in the context of an investigation. The Inquiry has no doubt but

that that is a legitimate concern. As noted earlier on a number of occasions, the Inquiry is

reluctant to be over-prescriptive about general solutions given the fact that the focus of the

Inquiry’s investigation has been in respect of one case only. However, the Inquiry feels

that it should recommend that urgent consideration be given by GSOC, senior

management within An Garda Síochána and, indeed, the respective garda representative

bodies, to the production and dissemination of much greater general information to ensure

that misunderstandings about GSOC’s role and its normal way of operating are minimal.

The Inquiry is also strongly of the view that consideration needs to be given in any such

process to making such information available, both generally, and in the context of specific

cases, relating to individual members, in a way designed to maximise the likelihood that

everyone concerned will fully understand the material. The mere fact that information may

be available does not mean that it will be read, accessed or understood. While leaving the

precise content and means of dissemination to those concerned, the Inquiry strongly

recommends that such information be made available generally as soon as practicable and

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that procedures should be put in place to ensure that specific communication of such

information is made directly to any gardaí involved in a criminal investigation as soon as

practicable after an investigation is designated as being a criminal investigation under s. 98.


12.205 The Inquiry notes that much of the evidence betrayed a significant lack of

information and misunderstanding on the part of many gardaí as to the precise role, remit

and practice of GSOC. The Inquiry notes that some of the lack of understanding which

arose in the context of this case is specific to the circumstances investigated. The lack of

adequate communication to An Garda Síochána at the meeting in Ballyshannon on the 1st

January is a case in point. In particular the fact that an email, which was intended to lead

to the formal communication to the three gardaí concerned that they were the subject of a

criminal investigation, was inadvertently deleted in the divisional office of An Garda

Síochána at Letterkenny was highly unfortunate. These factors combined to lead to the

extraordinary situation that neither Sgt Galvin nor Gda Clancy knew that they were the

subject of a criminal investigation until they were contacted (almost three months after the

investigation commenced) about a requirement that they present themselves for a

cautioned interview. Even more extraordinarily Sgt Doyle was unaware that he had been

the subject of investigation until he was told, after the death of Sgt Galvin, that no action

was to be taken in respect of him.

12.206 However, the Inquiry has also noted a lack of clarity amongst GSOC personnel as

to the precise circumstances in which they should inform members of An Garda Síochána

about the progress of a criminal investigation in accordance with the obligation to inform

contained in s.103 of the 2005 Act. While recognising that a final decision on the imparting

of information must necessarily be an operational decision taken by those on the ground,

the Inquiry recommends that more detailed guidance be given by GSOC to its designated

officers in that regard.

12.207 The Inquiry also recommends that much more detailed information be made

available to members of An Garda Síochána, in a clear form likely to be read and

understood, about the way in which GSOC investigations are carried out. It is in particular

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suggested that such information should be specifically imparted directly to any member of

An Garda Síochána who becomes the subject of a criminal investigation.

12.208 In addition, it is suggested that consideration be given to changing the current

practice whereby the existence of a GSOC criminal investigation is notified by An Garda

Síochána to the member concerned. It is suggested that this notification should be

conducted by GSOC in conjunction, if that is considered appropriate, with an appropriate

line manager within An Garda Síochána.

12.209 Finally, the Inquiry has tentatively suggested that GSOC might give consideration

to whether it is appropriate to apply its policy, of always referring a file to the DPP at the

conclusion of a GSOC criminal investigation under s.98 involving a death, in all cases. The

Inquiry feels that some consideration should be given to considering whether there may

not be some cases where no or so little evidence or materials are turned up in the course

of a GSOC investigation of that type that a referral of a file to the DPP might be considered

neither necessary nor truly justified.

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PART V

(13) Concluding Remarks

13.1 The largely undisputed facts as to the sequence of events which occurred between

garda contact with Ms Sheena Stewart immediately prior to her death and the events

immediately after the death of Sgt Galvin have been set out fully in this report. The Inquiry

considers that all parties cooperated fully with its requirements and that it has, therefore,

been able to identify those facts in some detail.

13.2 In addition the Inquiry has considered all of the issues which appeared to arise on the

evidence both in respect of the small number of issues of fact in relation to which there

was conflicting evidence and also in respect of questions as to the appropriateness of the

actions and decisions taken by GSOC designated officers. Those questions include issues

identified by the Inquiry itself but also all of those issues raised by the other interested

parties and in particular those parties, being An Garda Síochána and the members of the

extended Galvin family, who were fully represented during the entirety of the Inquiry’s

hearings. It may, of course, be too much to expect that all will agree with each and every

one of the conclusions and, indeed, the recommendations made by the Inquiry.

13.3 This report started with a comment that great tragedy does not always mean great

wrong but requires thorough investigation. The Inquiry would like to think that it has

conducted an appropriate and thorough investigation. Insofar as mistakes appeared to the

Inquiry to have occurred, same had been identified and commented on. Insofar as general

practices or legislation appear to the Inquiry to have contributed to the situation,

recommendations for review have been made. The Inquiry is of the view that it would be

unfair to attempt to place any responsibility on any of the GSOC personnel involved which

is greater than that which can be identified in what the Inquiry hopes are the measured

findings contained in this report. Some mistakes were made, some policies and practices

have been shown to be inadequate, but, in the Inquiry’s clear conclusion, all GSOC officers

acted bona fide and none were guilty of gross error less still actual misconduct.

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13.4 It is impossible, of course, to ignore the death of Sgt Galvin which was the reason for

the establishment of the Inquiry in the first place. But, as indicated at the beginning of this

report, to make findings which were not made out on the evidence or to level a degree of

criticism which was not warranted in all the circumstances, would not be appropriate.

13.5 The Inquiry would like to express its thanks to the parties, witnesses and observers

together with their representatives. I think it is fair to say that the work of the Inquiry was

always conducted in a dignified way. In particular those members of the Galvin family

who were constant attendees deserve special note for the most dignified fashion in which

they contributed to the work of the Inquiry in what must, for them, have been the most

trying of circumstances. While issues, both legal and factual, were raised and debated in

the course of the Inquiry’s work, the representatives of the respective parties always, in the

Inquiry’s view, did so in an appropriate and measured fashion. While the Inquiry’s process

was, in substance, a mixture of the inquisitorial and the adversarial, the business of the

Inquiry never became “adversarial” in the contentious sense of that term.

13.6 Finally, the Inquiry would wish to express its particular thanks to its own legal team,

Ms Helen-Claire O’Hanlon, B.L. and Ms Sorcha Cristin Whelan, B.L. for their invaluable

advice and assistance. The efficient organisation of the Inquiry’s work would not have

been possible without the sterling work of its administrator Ms Valerie Fallon. Last but

not least the laborious task of preparing the report in its very many drafts fell largely on the

shoulders of the Chairperson’s judicial secretary, Ms Tina Crowther, whose patience and

hard work is more than worthy of note.

APPENDICES

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Appendix 1 Index to Booklet of Documents

DOCUMENT INDEX – BOOK I

Documents from An Garda Síochána

1. Email correspondence with Annex 1 from Letterkenny Divisional Office to Chief

Superintendent Internal Affairs re s.102 Referral dated 02/01/2015

2. Report of Superintendent Michael Finan dated 01/01/2015

3. Letter of Inspector Denis Joyce dated 01/01/2015

4. Report of Sgt Stewart Doyle dated 01/01/2015

5. Correspondence between Gearáin, Internal Affairs and IO Gallagher 12/01/2015 –

13/01/2015

6. Letter enclosing documents requested in initial document request from Inspector

Joyce to IO Gallagher dated 01/02/2015

7. Letter from AGS Internal Affairs to Chief Superintendent Donegal enclosing

correspondence of IO Gallagher dated 26/01/2015

8. Letter with enclosed handwritten notes and diary entries from Superintendent Andrew

Archbold dated 24/02/2015

9. Letter from Sgt Gerard Mullaney Superintendent Ballyshannon dated 26/02/2015 to

enclosing documents requested in GSOC second document request for onward

transmission.

10. CCTV Stills and accompanying narrative

11. RTA Investigation file

DOCUMENT INDEX – BOOK II

SOBH File

1. Attendances, between SOBH and Sgt Galvin.

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157

2. Notes from Sgt Galvin provided to SOBH.

Documents from GSOC

3. Initiating Documents: s. 102 Referral Form, s. 98 Designation and ensuing Request

for Documentation

4. PULSE Request (first request) , Audit and Printout in relation to Sheena Stewart.

5. Duty Detail from Donegal Division.

6. Garda Incident Book from Ballyshannon.

7. 999 and Tetra Radio calls Transcripts.

8. S. 98 Checklist with accompanying documents.

9. Second PULSE Request.

10. Civilian Witnesses’ Statements.

Appendix 2 Index to Booklet of Statements

All Statements:

A. Gardaí:

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1. Superintendent Andrew Archbold– 2.

Superintendent Michael Finan

3. Sgt Stewart Doyle

4. Garda John Clancy

5. Garda Aidan Mulvihill

6. Inspector Denis Joyce

7. Sgt Gerard Mullaney

8. Garda Kevin Garvin

9. Chief Superintendent McGinn

10. Superintendent Colm Nevin

11. Sgt Paul Wallace

12. Sgt Joe Hannigan

13. Garda Brian Tuohy

14. Garda Helen McNally

15. Garda Darragh Phelan

16. Garda Paddy Battle

17. Garda Louise Foy

18. Garda Yvonne Carolan

19. Garda Chris O’Neill

20. Garda Sean Rogers

21. Gda Claire O’Hara

B. GSOC (Statements plus their exhibits):

1. SIO Nick Harden

2. IO Maurice Breen

3. IO Daniel Gallagher

4. DOI Ken Isaac

5. SIO Jon Leeman

6. SIO Rody Butler

7. DDOI Darren Wright

8. IO Pauline Byrne

9. SIO Johan Groenewald

10. Lorna Lee (Press Office)

11. SIO Garret Croke

12. Niamh McKeague

13. Michael O’Neill

14. Commissioner Kieran Fitzgerald

C. Solicitors:

15. Michael Hegarty

16. Gerald O’Donnell

17. Gerry McGovern

D. Family Members:

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18. Colette Galvin

19. Damien Hamill – Colette Galvin’s brother

20. Pat Feely - close friend

21. John Gill- brother -in-law

22. Gerardine Gill –sister

23. Family Statement

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Appendix 3 19-01-16 Provisional Ruling

Request for Disclosure of Further Documentation

Provisional Ruling

1. This is a provisional ruling which sets out the current view of the Inquiry in respect of

a request made by solicitors on behalf of the extended Galvin family to the effect that two

specific GSOC protocols should be disclosed and become part of the record for consideration

by the Inquiry. While a range of such protocols have been disclosed by GSOC and now form

part of the record, objection was taken by solicitors on behalf of GSOC in respect of the two

protocols concerned on the grounds that their contents were said not to be relevant.

2. For the purposes of considering the matter further the protocols in question were

submitted to the Inquiry so that a view could be formed as to their relevance. The purpose of

this provisional ruling is to set out the current view of the Inquiry on that question of

relevance. However, it should be noted that the Inquiry proposes to hear further from the

representatives of the extended Galvin family and the representatives of GSOC before

finalising its views on the matter.

3. Before setting out its provisional view the Inquiry would wish to make a number of

observations.

4. First, the Inquiry is mindful of the fact that a lot of evidence, both oral and

documentary, already forms part of the Inquiry’s record and, where appropriate, such

evidence has been the subject of cross-examination. In addition, the issues which appear to

be relevant to the Inquiry’s remit have been defined and refined. On that basis the scope of

the issues which remain for consideration and ultimate decision are now significantly refined

and it is appropriate that that factor be reflected in any decision as to relevance. Second, and

on the other hand, it must always be recalled that materials which are not directly relevant to

an issue can, nonetheless, play an indirect role by means, for example, of forming a useful

comparison or an appropriate backdrop to issues which are directly relevant. The Inquiry

has, therefore, in assessing the protocols in question for relevance, had regard not only to the

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issue of whether the protocols in question might be directly relevant to any of the issues

which remain for decision but also whether some or all of the content of the protocols

concerned might, even if not directly relevant in that fashion, provide material assistance of

an indirect variety in the assessment of live issues.

5. Bearing those matters in mind it is proposed to deal first with the GSOC policy on the

operation of s.88(2)(b) of the 2005 Act. That section of the Act requires that a copy of any

complaint received by GSOC should be sent to the Garda Commissioner. As such the

protocol is clearly not directly relevant to this Inquiry. The Inquiry has considered the fact

that much of the provisions of the 2005 Act concerning the handling of complaints are

expressly applied to a consideration of matters referred to GSOC by the Garda Commissioner

under section 102. The Inquiry therefore, considered whether any of the content of the

protocol in question might have indirect relevance to issues within its remit. The current

view of the Inquiry is that the protocol in question does not contain any matters which are

indirectly relevant. The protocol in question is concerned solely with operational matters

concerning the materials which should be supplied by GSOC to the Commissioner arising

out of a complaint in circumstances where the Commissioner would not, obviously, have any

information about the content of the complaint or any materials accompanying it until such

time as such details were communicated by GSOC. There does not seem to the Inquiry to be

any parallel with issues which arise in the context of a reference under section 102.

6. The second protocol concerns disciplinary inquiries under s.95 of the 2005 Act.

Much of that protocol is concerned with operational matters concerning the procedures to be

followed in the course of such investigations. In those circumstances much of the material

does not appear to the Inquiry to be relevant, either directly or indirectly, to its remit.

7. However, there are some matters contained within the protocol which do seem to the

Inquiry to have at least some potential relevance. These are the following:-

(a) The introduction which sets out the main ways in which a s.95

investigation may take place. It is considered that the content of that aspect

of the protocol might have some relevance to the issue concerning the

decision to designate the investigation in this case as a s.98 (rather than a

s.95) investigation.

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(b) Part 3 (which specifies the notices to be provided to a relevant Garda officer) may

be indirectly relevant to the parallel issue which arises for the Inquiry concerning

the notification of the relevant officers in this case.

(c) Furthermore, it seems to the Inquiry that the fact that the protocol does not appear

to make any reference to the possibility of an investigation under s.95 being

“upgraded” to a criminal Inquiry under s.98 may also be of some reference to the

Inquiry.

8. In those circumstances the current view of the Inquiry is that a redacted version of the

protocol in question should be prepared and form part of its record which should contain both the

introduction and s.3 together with a note confirming that the protocol does not make any reference

to a s.95 Inquiry being converted into a s.98 Inquiry.

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Appendix 4 – 19-01-16 Provisional Ruling

Request for Disclosure of Further Documentation

Provisional Ruling

1. This is a provisional ruling which sets out the current view of the Inquiry in respect of

requests made by solicitors on behalf of the extended Galvin family to the effect that certain

documentation specified in a letter of the 8th January, 2016 should be disclosed and become

part of the record for consideration by the Inquiry. Solicitors on behalf of the designated

officers of GSOC have objected to that disclosure principally on the basis that the documents

concerned relate to issues which are outside the scope of the Inquiry’s remit.

2. The background to the request concerns evidence which was heard by the Inquiry

concerning material (“Frequently Asked Questions”) which appeared on the GSOC website in

the summer of last year. The evidence has established that the materials concerned had been

uploaded to the GSOC website by its head of communication Ms Lorna Lee. There is no

doubt that some of the content of what was uploaded had been the subject of some prior

discussion with designated officers of GSOC. Furthermore, certain drafts of possible

information that might be provided via the GSOC website had been in place for some time.

3. However, it must be recalled that the limit of the Inquiry’s remit is to consider the

conduct of designated officers of GSOC insofar as those officers were involved in the GSOC

investigation into the involvement of An Garda Síochána in events surrounding the death of

Sheena Stewart. First it must be noted that Ms Lee is not a designated officer of GSOC and

the Inquiry is not, therefore, at least directly, concerned with her actions. Obviously her

actions and evidence may be relevant but only to the extent that she may have interacted with

designated officers of GSOC in the course of the carrying out by those officers of duties

connected with the investigation into the death of Sheena Stewart.

4. It is noted that solicitors for the relevant GSOC officials suggest that there was, in fact,

no policy but rather that a decision was taken to give further information by means of posting

the material in question on the GSOC website. It does also appear on the evidence to date that

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some of the content of what was posted may have been inaccurate. On that basis the material

was removed from the website in November, 2015.

5. However, it must be recalled that the events which are within the remit of the Inquiry

were largely completed by the early days of June of 2015. Thus, even if it could be said that a

policy was adopted after that time and before the relevant material appearing on the website,

such a policy could not be relevant to the conduct of designated officers before any such new

policy came into being. It must be emphasised that the question of the posting of the

information itself is outside the remit of the Inquiry. The materials sought could only be

relevant if there was a basis on which it might reasonably be felt that the content of that

material was relevant to an assessment of the conduct of designated officers of GSOC at the

time of the investigation into the circumstances leading to the death of Sheena Stewart. It does

not at present appear to the Inquiry that there is any basis for considering that the material in

question could be relevant. There is no evidence that any policy had been adopted which

could have impacted on the assessment of the conduct of the designated officers in question.

6. Therefore, subject to such submission as may be made, the current view of the Inquiry

is that the materials sought are not relevant to its remit.

Appendix 5 – 20-01-16 Final Ruling and Determination

Request for Disclosure of Further Documentation and Other Matters

Ruling and Direction

The first part of this ruling is a final ruling which follows on from a provisional ruling issued

in respect of a contested requested made by solicitors on behalf of the extended Galvin family

to the effect that certain documentation specified in a letter of the 8th January, 2016 should be

disclosed and become part of the record for consideration by the Inquiry. Subsequent to

issuing that provisional ruling and as contemplated thereby, an oral hearing took place at

165

which further submissions were made on behalf of the extended members of the Galvin family

as to the reasons why, it was suggested, the Inquiry should reconsider the provisional ruling

referred to above.

As appears from that provisional ruling the principal ground on which the Inquiry indicated

that it was not minded to direct any further disclosure concerned relevance. The argument put

forward at the oral hearing on behalf of the family placed particular reliance on a GSOC

document entitled “RTC Investigation Guide (V3)” (“the Guidance”) which appears to be a

third version (hence the V3) of the document in question, appears to be authored by Darren

Wright and is dated April, 2009. Attention was drawn to the fact that the Guidance does

make reference to an information leaflet which, according to para. 3.9 of the same, might be

given to “Garda members concerned” and which “outlines the role of GSOC and will answer

any queries they may have concerning GSOC procedures”. Appendix 3 of the document

contains what is described as “a copy of this leaflet”.

On that basis it was suggested that there was at least some form of guidance in existence as far

as back as 2009 which was not dissimilar to the content of the website to which reference has

already been made in the provisional ruling. On that basis it was in turn said that there were

materials from which it might be inferred that a policy or guidance concerning the handing

out of a leaflet was in place as far back as 2009. This fact might, it was therefore argued, be

relevant to the timescale with which this Inquiry in concerned. It should also be noted that the

Guidance only became available to the Inquiry and the parties after the taking of evidence had

completed and it was not, therefore, possible to explore either with Mr Wright or any other

relevant witness, the provenance of the document in question.

I am not persuaded that the existence of the Guidance provides a basis for inquiring in more

detail into documents which would likely have passed between Ms Lee and other senior

GSOC officials in the context of the material which ultimately appeared on the GSOC website

between July/August 2015 and November of that year. The Inquiry remains of the view that

such matters are outside its remit for the reasons set out in the provisional ruling.

However, the Inquiry is of the view that it is necessary to obtain further clarification on the

Guidance, given that it predates the events which are the subject of the Inquiry, has at least the

potential to influence an assessment of relevant conduct of GSOC designated officers.

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In that context the Inquiry proposes directing that a further witness statement or witness

statements should be filed as soon as possible (whether from Mr Wright and/or others) addressing

the following questions:-

Whether the Guidance was a draft document or one which was regarded as

operational;

If it is said that the Guidance was in draft form only whether any steps were taken

between 2009 and the earlier part of 2015 to produce a final and operational

version thereof and if not, why not; or

If operational, the identity of those persons to whom the Guidance would have

been circulated and its status (by which is meant whether those to whom it was

circulated would have been expected to comply with or at least have regard to the

guidance therein contained);

If operational, whether there were any amendments to the Guidance between

April, 2009 and the time of the events with which the Inquiry is concerned;

It is noted that the Guidance is concerned with what is described as “a serious or

fatal road traffic collision involving gardaí”. It may well be debateable as to

whether the events with which the gardaí were concerned in the circumstances of

this inquiry come within that definition. Clearly the road traffic accident which

tragically led to the death of Ms Stewart did not involve a member of An Garda

Síochána as the driver of a vehicle. On the other hand the referral of the incident to

GSOC in accordance with the provisions of s.102 of the 2005 Act seems to imply

that the senior Garda officer making the referral in question must have considered

that it appeared that the road traffic accident may have resulted from the conduct of

a member of An Garda Síochána. GSOC’s view on that question should be

addressed;

In any event, and even if it might be considered reasonable to conclude that the

Guidance does not apply to an incident such as that with which An Garda

Síochána were concerned in this case, a question arises as to whether there would

be any logic in requiring a leaflet or information to be given to a member of An

Garda Síochána who is under criminal investigation arising out of a motor

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accident in which that member was a driver but not requiring that similar

information be given to a member of An Garda Síochána who is under criminal

investigation in circumstances where it might be considered necessary to

investigate whether wilful neglect of duty on the part of such member might have

resulted in a tragic motor accident. GSOC’s position on this question should be

addressed;

Given that the evidence suggests that there was, in fact, no such leaflet in

existence which was, as a matter practice, handed out to members of an Garda

Síochána, the Inquiry would wish to know the status of appendix 3 of the

document in question and in particular whether a leaflet in the form set out in that

appendix was ever actually given out to members of An Garda Síochána and if

not, why that was so.

Given that the Inquiry is directing that additional information along the lines set out above

should be provided it is also appropriate to deal with a similar requirement which arises out

of a consideration by the Inquiry, in the light of the evidence and submissions received to

date, of the questions which it may need to address in compiling a report to the Minister. The

backdrop to this requirement for additional information is set out hereafter.

The Inquiry feels that the evidence concerning the position, both as a matter of delegation and

as a matter of practice, which pertain in respect of the discontinuance of an investigation under

s.93 of the 2005 Act requires greater clarification.

The Inquiry is mindful of the fact that there may be perfectly legitimate reasons why the

position which pertains as a matter of formal delegation may differ from what is accepted to

be the normal practice. For example, the evidence already heard makes clear that subsequent

to a reference under s.102, as a matter of formal delegation, the question of the

commencement of an investigation under either s.95 or s.98 can be determined by a senior

investigating officer or either of the two senior officials. Under the legislation the relevant

power is, of course, conferred on the Commission. However, that power of the Commission

has, appropriately, been delegated in the manner just described. However, the evidence also

suggested that, as a matter of practice and save in unusual situations of extreme urgency, the

decision in question would not be taken by an SIO but rather by one or other of the two senior

officials. The Inquiry mentions this point because it would like, in the context of the

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requirement which follows, to emphasise the need to deal both with matters of formal

delegation and with any matters of practice.

The statutory power to discontinue is also conferred, in express terms, on the Commission

itself. The Inquiry wishes greater clarity on the extent to which that power has been

delegated and the persons to whom such delegation has been made. The Inquiry also wishes

greater clarity on any practice concerning such matters. The Inquiry also wishes to know,

again both as a matter of formal delegation and as a matter of practice, whether the

entitlement to discontinue is different depending on whether:-

a. The matter referred under s.102 has not, at the relevant time, been the subject of

a decision to commence an investigation under either s.95 or s.98;

b. An investigation under s.95 is in being; or

c. An investigation under s.98 is in being.

A witness statement dealing with these matters should also be filed. The Inquiry would also

wish that, if such exist, any documents evidencing matters referred to are annexed to any

relevant witness statement or statements. As noted earlier the Inquiry would, in the context of

the current timetable for the completion of all evidence gathering, request that such witness

statement(s) be filed as soon as possible. In addition an indication of the time within which such

statements will be filed should be given immediately.

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Appendix 6 – Second Supplemental Statement of Darren Wright

175

Appendix 7 – Correspondence from Mason Hayes & Curran Solicitors 04/02/16

176

Appendix 8 – “Operations Directive on the Use of Section 93”

185

Appendix 9 – “Delegation of Powers in relation to Section 93”

186

Appendix 10 – 29/01/16 Decision on Scope

187

The Inquiry is satisfied that the proper construction of s.109 of the Garda Síochána Act, 2005

interpreted in accordance with the Interpretation Act, is such that the Inquiry is entitled to

consider a decision to designate an investigation as being one under s.98 of the 2005 Act. In

addition the Inquiry is satisfied that it can consider any actions taken by a designated officer

which are connected with a s.98 inquiry as long as that inquiry remains unconcluded. On that

basis the Inquiry is satisfied that it can consider the actions of designated officers in

informing relevant parties and the public concerning the status of a s.98 inquiry provided that

those actions took place at a time when the s.98 investigation was still in being. The Inquiry

is also satisfied that the s.98 investigation in this case remained in being at the time when the

publication of information in respect of which evidence has been given occurred. On that

basis the Inquiry is satisfied that it may reach conclusions in respect of the actions of

designated officers based on that evidence. The Inquiry proposes to give more detailed

reasons for coming to those conclusions in due course.

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Appendix 11 – 11-02-16 Reasons for Ruling

Reasons for Ruling

Full and detailed reasons for the Ruling already made on the question of the scope of

the Inquiry will be set out in the Inquiry’s report to the Minister. However, for the purposes of

assisting the parties in advance of the hearing scheduled for Friday 12th February, a brief

account of the principal bases for coming to the conclusion already notified is hereafter set

out.

The Inquiry is of the view that the principal intention of the legislature in enacting

s.109 of the Garda Síochána Act, 2005 was to provide oversight in respect of the exercise by

designated officers of GSOC of the police powers conferred upon them in the context of a

s.98 criminal investigation. It seems clear to the Inquiry that the purpose behind confining an

inquiry under s.109 to the conduct of designated officers when carrying out a s.98 investigation

(as opposed to a s.95 investigation) leads only to that conclusion. In the

Inquiry’s view an interpretation of s.109 which precluded a judge appointed to conduct an

inquiry under that section from considering the circumstances in which a decision was taken

to commence an inquiry under s.98 would result, in the words of s.5(1)(b)(i) of the

Interpretation Act, 2005, in an interpretation which failed to reflect the plain intention of the

Oireachtas. The decision to designate an investigation as being one under s.98 carries the

consequence that significant power is conferred on any designated officer of GSOC who may

become involved in the investigation in question. To provide for oversight in respect of the

manner in which such powers were exercised but to provide no oversight in respect of a

decision, when taken by a designated officer of GSOC, to give to designated officers those

powers in the first place would, in the Inquiry’s view, represent an interpretation, even if

literally correct, which would clearly not reflect the plain intention of the legislation which is, as

already noted, to provide appropriate oversight over the exercise of police powers.

It is accepted that an inquiry under s.109 could not provide oversight in respect of a

decision to designate an investigation under s.98 which was taken by the Commission itself rather

than by a designated officer. However, it seems to the Inquiry that the exclusion of the

Commission itself from the scope of a s.109 Inquiry results from a policy determination that a

189

s.109 inquiry should not be permitted in respect of the commissioners themselves rather than

by reference to any specific type of decision which the commissioners might make. It is clear

that many of the decisions which the commissioners themselves can make under the act may

also be delegated to appropriate officials under s.75 of the Act. Section 75(2) contains a

limitation which excludes from delegation functions under ss. 99 and 108. Thus the legislation

contemplates the possibility that the function of determining whether there should be any

formal investigation and if so whether it should be under s.95 or s.98 is a function which can

be delegated. On that basis the Inquiry does not consider it appropriate to infer from the fact

that the legislation, at least at first instance, confers such power on the Commission (but

subject to an entitlement to delegate) that a s.109 investigation cannot have within its scope a

consideration of a decision to designate under s.98.

Finally, it is necessary to set out the reasons why the Inquiry took the view that it was

possible within the scope of this inquiry to consider the actions of designated officers in

relation to the publication of certain information concerning the investigation into the death

of Sheena Stewart. The scope of an inquiry under s.109 relates to the conduct of a designated

officer in performing functions under s.98 or s.99. While those sections confer specific

powers on designated officers they do not confine the scope of the investigation to be carried

out by a designated officer in respect of an investigation which has been directed under any of

the relevant provisions to investigate a matter under s.98. It seems to the Inquiry, therefore,

that as long as an investigation under s.98 remains in being, then any conduct of a designated

officer arising out of that investigation potentially comes within the scope of an inquiry under

s.109 even though that conduct does not directly relate to the exercise of any of the powers

conferred by s.98 or s.99. Such conduct arises in the context of an inquiry where such powers

have been conferred. In addition the existence of such powers must necessarily form part of

the backdrop to all aspects of the investigation for it must be the case that, at least in certain

circumstances, it will prove unnecessary to exercise formal power precisely because the

power exists to compel in the first place. Furthermore, it would render any inquiry under

s.109 almost impossible if the judge appointed to conduct the Inquiry was confined to

considering conduct which amounted to the exercise of the formal powers specifically set out

in ss. 98 and 99.

Appendix 12 – Correspondence from Mason Hayes & Curran Solicitors 26/02/16

190

Edward Gleeson <[email protected]> 26/02/2016 12:16

To "[email protected]" <[email protected]>, "[email protected]" <[email protected]>,

cc Laura Rattigan <[email protected]>

Subject Our Client : Lorna Lee [MHC-MHCDMSFID3568184]

Dear Ms Fallon, I write on behalf of Lorna Lee who attended as a witness in both phases of the Inquiry.

Although Ms Lee is not a designated officer and therefore not a person whose conduct is

under investigation by the Inquiry it does occur to us that by reason of her role in certain

events with which the Inquiry is concerned ,there is at least a possibility that Ms Lee may be

referred to in the course of the Inquiry’s Report. For this reason we request that we be

furnished on behalf of Ms Lee with any excerpts from the draft text of the Report which contain

reference to the involvement of Ms Lee. By this means our client would have the opportunity

of making submissions in the event that any error of fact or law should be considered to arise

within such excerpts. I confirm that we would be agreeable to entering such undertaking as to confidentiality as the

Inquiry may consider necessary to ensure the confidentiality of its draft Report. Yours sincerely, Edward Gleeson Partner MASON HAYES & CURRAN South Bank House, Barrow Street, Dublin 4, Ireland. t +353 1 614 5000 f +353 1 614 5001

d +353 1 614 2438 m +86 6899949 e

[email protected] w MHC.ie

Appendix 13 – Final Ruling of 18/04/16

Ruling on Circulation of Draft Report

The purpose of this ruling is to deal with an application brought on behalf of GSOC

designated officers and Ms Lorna Lee concerning the possible circulation of a draft of the Inquiry’s

report prior to the submission of that report to the Minister.

It is correct to say that it has been common practice for many inquisitorial inquiries to

adopt such a procedure. Indeed, it was pointed out in the written submissions that the

legislation providing for Commissions of Inquiry makes an express requirement that such a

procedure be adopted. It is, of course, the case that the Garda Síochána Act, 2005, under which

http://www.mhc.ie/

http://www.mhc.ie/

191

this inquiry operates, has no such express requirement. In those circumstances it is necessary

to consider two questions. Firstly, whether there is any legal requirement, in the absence of an

express provision in the relevant legislation, which would require such a practice to be

adopted in the context of this inquiry. Second, even if such a practice was not required as a

matter of law, it is necessary to consider whether it would be appropriate, in the circumstances

of this case, to nonetheless exercise a discretion in favour of the adoption of such a practice.

In order to assess the first question it is necessary to consider the underlying rationale

for the practice which has, as has been pointed out, been adopted in many inquisitorial-type

inquiries. The practice is sometimes traced back to In Re Pergamon Press [1971] Ch 388

which involved an inquiry conducted in the United Kingdom into the affairs of the company

concerned. Indeed, at certain times, a practice evolved which, rather than involving the

submission of a draft of the report to the parties, involved the sending of a letter to any

potentially affected party specifying potential adverse findings and inviting the party

concerned to make any submissions or supply any materials which might be relevant to that

adverse finding. The purpose of such a procedure was to afford relevant parties the

opportunity to attempt to persuade the inquirer not to make the suggested or potential finding

or at least to water down the adverse nature thereof. Indeed such letters were, at one stage,

referred to frequently as “Pergamon letters”.

In more recent times in this jurisdiction a practice has evolved which involved sending

relevant portions of a draft report to parties potentially affected to enable them to make

submissions prior to the report being finalised.

However, it seems clear that the reason why one or other of those practices was

considered either desirable or, in some cases, necessary to comply with fairness stemmed

from the procedures typically adopted in the inquisitorial process. It must be recalled that an

inquiry involves the inquirer seeking out evidence, whether documentary or oral, from

persons or bodies who appear to be likely to have information relevant to the issues which

arise within the inquiry’s remit. As a result of the information assembled an inquiry may

adopt further procedures to enable parties who may be adversely affected by possible

conclusions which might be reached arising from the evidence thus obtained to challenge that

evidence, to put forward other evidence or materials which might lead to a different

conclusion or to make submissions as to the proper conclusions which can or should be

reached on the basis of the relevant materials.

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Such a process is in contrast to that which occurs in a typical court case where one

party (be it a person or body in the context of civil proceedings or a state agency in the

context of criminal proceedings) makes an allegation of civil or criminal wrongdoing and

seeks an appropriate remedy or order from a court of competent jurisdiction. Court

procedures require, to a greater or lesser extent, that the case against the defendant or accused

be set out in advance in some detail and require the presence of the defendant or accused,

together with representation if appropriate, at any stage when evidence, which might

potentially affect the ultimate outcome of the proceedings, is being heard. Thus court

procedure, in and of itself, allows the defendant or accused to know the case against them, to

challenge that case, and to put forward any evidence, materials or submissions which may be

relevant to the ultimate outcome. It is against that background that it has never been the

practice of the courts to supply parties with a draft of a judgment in advance of its delivery.

It seems clear, therefore, that it is not, in and of itself, necessary, or even necessarily

appropriate, for a decision maker to provide a draft of a ruling or an indication of the likely

content of a ruling in advance of that ruling becoming final. If it were otherwise then the

procedure adopted in every court would be in breach of the rules of constitutional justice. The

reason why such a practice is not required in the courts system stems from the process which

occurs in a court prior to the judge making a ruling or issuing a judgment. To the extent,

therefore, that a different procedure involving some disclosure in advance of a potential

adverse ruling may be required in an inquisitorial process it follows that such a requirement

stems from the difference in the procedures which may be followed in such a process. It

seems to the Inquiry to follow that the question which must, therefore, be addressed, is truly

as to whether the process followed is such as requires a circulation of a draft report or some

other mechanism which gives a preliminary indication of potential adverse findings. It is

against that background that it is necessary to examine the process followed by this inquiry

for the purposes of assessing whether it is either necessary or desirable to circulate a draft

report.

A number of features of the process followed by this inquiry are relevant in that context.

First, all parties who appeared to have materials of potential relevance to the

Inquiry’s remit were required to disclose any non-privileged documentary material on oath.

More importantly, in the context of this issue, all relevant material thus obtained was

circulated to all of the interested parties. Thus, in advance of the formal taking of evidence, all

interested parties were given access to all relevant documentary material. While it is true that

193

some additional documents came to light in the course of the taking of evidence, such is not

infrequently the case in the court process as well and does not, in the Inquiry’s view, warrant a

departure from what might otherwise be an appropriate procedure provided that, as occurred

here, all interested parties were given a reasonable opportunity to deal with any new materials

thus arising prior to the conclusion of the process.

Next it is important to note that, by analogy with the powers contained in the Rules of

the Superior Courts in respect of proceedings conducted in the Commercial List, all potential

witnesses were required to submit a witness statement. Those witness statements were

supplied, in advance of the giving of evidence by such witnesses, to all interested parties. It

follows that, prior to the taking of any evidence, each interested party had a detailed account of

the evidence likely to be given, both orally and in documentary form, to the Inquiry.

Furthermore, while, as is common in many inquisitorial processes, the initial taking of

evidence under oath from each witness was conducted by the questioning of the witness

concerned by a member of the Inquiry’s legal team, each interested party was afforded the

opportunity to be present during that process (a procedure which is by no means universally

followed in all inquisitorial processes) and thus observe the witness giving evidence. For

completeness all interested parties were also supplied with transcripts of the evidence. Thus

almost all of the interested parties were in fact present during the taking of all of the evidence

during phase 1 and, to the extent that any party was not present, same was as a matter of their own

choice and those parties were, in any event, given a transcript of what transpired.

The process adopted during phase 2 of the taking of evidence needs to be considered

both in and of itself but also in the context of what had gone before. By the time phase 2

commenced each interested party had, therefore, not only received in advance of phase 1 all

relevant documents and witness statements but also had had the opportunity to be present

during the taking of evidence during phase 1. It is against that background that the procedure

adopted in respect of phase 2 needs to be considered. In particular each interested party was

given the opportunity to request (on a reasoned basis) that they be permitted to cross-examine

any witness or, indeed, to tender any further evidence or materials which they might have

considered to be relevant to issues which emerged in the course of the earlier evidence taking.

Indeed, the procedure adopted during phase 2 was that the evidence given, in answer to

counsel for the Inquiry, during phase 1 was taken to be analogous to the evidence in chief of

the witness concerned and any interested party was then afforded the opportunity to

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crossexamine the witness on any issues which could be shown to be relevant to the Inquiry’s

remit. It follows that the procedures adopted by this inquiry were able to very closely mirror,

so far as evidence taking is concerned, the procedures followed by a court. There was

significant disclosure in advance (indeed it may be said that the disclosure exceeded that

which might apply in some types of civil proceedings). While the initial taking of evidence

was, indeed, conducted by counsel to the Inquiry, nonetheless that was done in the presence

of all interested parties who were given a full opportunity to thus identify any evidence which

they wished to challenge or additional evidence or materials which they wished to put before

the Inquiry in a manner closely analogous to the rights which a defendant or accused would

have in court proceedings. It does not seem to the Inquiry that the one real difference, being

the fact that the initial taking of evidence was in the form of questioning by counsel for the

Inquiry rather than, in the context of court proceedings, being by counsel on behalf of one of

the parties, makes any material difference to the process in the context of the issue with

which the Inquiry is now dealing.

It is also, of course, necessary to consider the other vital aspect of the court process

being that the issues to which any evidence may be directed are defined in advance either by the

pleadings in a civil context or the charge or indictment in criminal cases. There are, obviously,

differences which arise in the context of an inquisitorial process. However, many of the

procedures put in place were designed to minimise the extent to which there would, in practice,

be any significant difference between the information which a defendant or accused might have

in court proceedings and which any interested party might have had in the context of this

Inquiry.

It should, therefore, be noted that, in advance of the taking of any evidence, the

Inquiry itself identified a range of issues which the Inquiry considered to be matters which, in

the light of the materials then available, required detailed investigation which might,

potentially, lead to adverse findings. Those issues were circulated to all interested parties and

each party was given an opportunity to suggest additions, subtractions or variations to the

issues concerned. While it was made clear that those issues were not necessarily written in

stone and might be adjusted in the light of developments, it was also made clear that all

interested parties would be both given an opportunity to make submissions on any such

changes and would be clearly notified by the Inquiry in the event that it were ultimately

persuaded to extend the issues under consideration beyond those identified in that initial

notification. In the events that happened no such extension in fact occurred and, indeed, it

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was indicated by the Inquiry that it had reached a provisional view (which was not

subsequently displaced by any further developments) that, on one of those issues, being the

question of whether any adverse finding might be made arising out of the manner of the

conduct of the interviews under caution of Sgt Galvin and Gda Clancy, on the basis of the

evidence and materials then available, there was no basis for reaching any adverse finding.

While again it was made clear that the view thus expressed was provisional and might change

in the event of further evidence or materials emerging or in the light of any submissions

made, in the events that happened no such revisiting took place. Thus the issues in respect of

which there might have been the potential for adverse comment were, in the events which

happened in this Inquiry, defined in advance and have, if anything, narrowed as the Inquiry

progressed. There is, therefore, in the Inquiry’s view, a close analogy with the court process

in that the issues were defined in advance and while there remained the possibility of the

issues expanding that did not in fact happen so that, from the beginning of the evidencetaking

process, all parties have been aware of the scope of the issues.

In addition a number of further matters were made clear by the Inquiry. First it was made

clear from the beginning that no adverse finding would be made outside the scope of the issues

identified at the beginning or such further issues as might have been notified in the course of the

Inquiry. As already noted there was no expansion of the issues. It follows that all parties had

been aware, since before the evidence-taking process began, of each of the issues on which it

was possible that an adverse finding might be made and had the benefit of a clear indication from

the Inquiry that no adverse findings outside the scope of those issues would be made.

Next it was made clear at the beginning of phase 2 that it was incumbent on counsel

for any interested party to put to any relevant witness, in the course of cross-examination, any

matters which might form the basis of a subsequent submission to the effect that an adverse

finding might be made, so as to give that witness an opportunity to comment. It was made

clear that the Inquiry would not entertain submissions which might lead to adverse findings if

any relevant witness had not been given a fair opportunity, in that way, to answer the issues

which might lead to such an adverse finding. In the Inquiry’s view counsel complied with that

obligation and none of the submissions which were ultimately made either in writing or orally

were suggested to have gone beyond the scope of matters which were fairly put to any

relevant witness. It was also made clear that the Inquiry itself would, if there were any issues

about which it might be concerned and which went beyond those which had been identified

either in cross-examination or in submissions by other interested parties, identify those issues

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and ask any relevant questions of the witnesses concerned so as to give a similar opportunity

to such witnesses to deal with any such issues.

It follows that all interested parties had a clear assurance from an early stage that the

parameters, both in general terms in the context of the issues defined at the beginning, and in

more detailed terms in the context of the issues raised in cross-examination, in submissions and

by the Inquiry itself, of those matters which might form the subject of an adverse finding were

clearly defined.

In that regard also it seems to the Inquiry that it proved possible, in the context of this

particular inquiry, to adopt procedures which bear a much closer analogy, in the context of pre-

notification of the case against any individual and thus the affording to such individual of a full

opportunity to answer any such case, with the procedure which occurs in the context of court

proceedings as opposed to the procedures which may necessarily have to be followed in at

least some inquisitorial processes. The Inquiry reiterates, at this stage, that there never was nor

is there now any prospect of any adverse finding being made which goes beyond the scope of

the issues, both at a general level and as a matter of detail, thus identified. It is, therefore,

clearly the case that, in common with the process which applies in a court, each party has, by

virtue of the process followed by this Inquiry, had full knowledge of any potential issue which

might give rise to an adverse finding and has had that knowledge at a time and in a manner

which afforded the party concerned an opportunity to deal with any such issues in whatever

way it considered appropriate whether by challenging evidence, making submissions or

tendering further evidence or materials.

In the Inquiry’s view, therefore, it has proved possible in the context of this particular

inquiry to adopt procedures which closely mirror in substance, if not always in form, those

which are followed in a court case. It seems to the Inquiry to follow that, by analogy with the

procedure adopted in court cases, it is not, therefore, necessary, in order that fair procedures

be followed, that parties are given either a draft of the report or some other account of any

potential adverse finding. Just as in a court case all parties have had clear notice of any area in

which a potential adverse finding might have been made well in time to deal with such matters

in what ever way was considered appropriate.

In the light of the submissions made on behalf of GSOC designated officers and Ms

Lee it is also necessary to deal with a number of other points raised. By way of background it

should be noted that it may not always be possible, in the light of the nature of the particular

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issues which an inquiry is required to investigate, to adopt procedures of the sort noted in this

ruling which are analogous to such a significant extent to those adopted in a court. In this

inquiry it was clear from an early stage that at least many of the facts were not in significant

controversy with the main focus being on whether what happened was justified rather than

identifying what had actually happened. In other inquiries or investigations matters may not be

so straightforward and it may not prove possible to always adopt procedures such as those

which were adopted in this case. But where it is possible to adopt such procedures then it

seems to this Inquiry that it is not necessary, in order to comply with the requirement of fair

procedures, to go further than the procedures adopted by a court which do not require any pre-

disclosure of potential adverse findings.

Next it is necessary to consider whether, even if such pre-disclosure is not required, it

might be appropriate in this case. The statutory regime under which this Inquiry operates

requires it to report directly to the Minister and requires the Minister to transmit the report to

GSOC. Whether any further publication, in whole or in part, of the report is considered possible or

appropriate and whether to the public generally or to specific persons, bodies or individuals, is not

a matter over which the Inquiry is given any control but rather is a matter for the Minister.

However, it is the unfortunate experience in the past that when draft reports or parts thereof are

given to parties for the purposes of allowing them to comment prior to the finalisation of the report

concerned, attempts are made by some parties involved to leak either accurate or spun versions of

the draft report into the public domain doubtless for the purposes of attempting to manage the way

in which the findings of the report may come to be perceived in the media and thus by the public.

It is true, as was submitted on behalf of various GSOC personnel, that it is possible to attempt to

minimise such risk by extracting undertakings from those concerned. However, the experience of

various investigations and inquiries in the past has been that leaks of the type described occur even

where obligations of confidentiality are imposed and that, having regard to the fact that journalists

will never reveal their sources, it rarely proves possible to identify the source of the leak.

Experience suggests, therefore, that the extraction of undertakings or the like will rarely prove an

effective means of preventing leaks. In those circumstances this Inquiry is of the view that it would

not be appropriate to disseminate a draft report or other account of potential adverse findings unless

it was necessary so to do so as to comply with the requirements of fair procedures. For the reasons

already identified the Inquiry is not, in the particular circumstances of this case, so satisfied.

Finally, it is necessary to deal with one argument put forward on behalf of GSOC

personnel which made the point that there is a distinction between the court process, in which

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an appeal normally lies, and an inquiry process which can only be challenged by means of

judicial review. The point is made in the context of the fact that the scope of judicial review,

so far as facts are concerned, is, of course, quite limited. Attention is drawn to the fact that,

even in those limited number of cases where aspects of the report of an inquisitorial body have

been quashed for one reason or another, the original report is still there.

The point is correct so far as it goes. However, the Inquiry is not convinced that the

weight to be attached to the point is anything like that suggested. First, in the context of court

proceedings, it is also true that the judgment of a first instance court will remain there for

perusal even if an appellate court overturns some aspect of the judgment concerned on the facts.

There are quite a number of judgments of the High Court which remain available on various

websites (including that of the Courts Service) where the judgment concerned has, in some

material respect, been overturned on appeal. The Inquiry is not convinced that there is a very

great difference between the status of a report which has been quashed in judicial review

proceedings and a judgment which has been overturned on appeal. The physical document

representing the report or the first instance judgment remains available. It may always be

possible that someone may read one or other without reference to the fact that it has been

disturbed by a successful appeal or judicial review. But that applies equally to the first instance

court judgment as it does to a report.

While there are some differences between the extent to which a court

exercising a judicial review function can revisit facts compared with the jurisdiction of an

appellate court nonetheless there are significant limitations in both cases even though those

limitations may be greater in the context of judicial review. But it is also necessary to point

out that there are a number of types of court proceedings from which there is no appeal but

where, nonetheless, it has never been suggested that there is an obligation on the judge to

circulate a draft of all or part of a judgment in advance. A very good example is the hearing

of an appeal by the High Court from a decision in civil proceedings taken in the Circuit Court.

Such an appeal is by way of full rehearing with all of the evidence being heard again and the

High Court judge conducting the appeal being required to assess that evidence and reach

conclusions on the facts independent of the view previously taken by the Circuit Court judge.

In the past there was no appeal of any sort from the decision of the High Court judge hearing

such a Circuit Appeal. Since the 33rd Amendment to the Constitution there may be a

possibility of seeking leave to bring a so-called leap-frog appeal to the Supreme Court but

such an appeal would require to be based on an issue of sufficient general importance to meet

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the constitutional threshold specified in the 33rd Amendment. Thus such an appeal would be

most unlikely, at least in the vast majority of cases, to be available simply to correct an

alleged error of fact in an individual case. It follows, therefore, that there are a number of

types of court case from which there is no appeal on the facts (and indeed in the example

given not even the possibility of judicial review). But in such cases it has never been

considered either necessary or appropriate for the trial judge to make a draft of some or all of

the judgment available in advance.

While, therefore, some distinctions can be identified between a court judgment and the

report on an inquisitorial body, this Inquiry is not persuaded that any such are of any

significant materiality and certainly not so to such an extent as would alter the conclusion

earlier indicated to the effect that there is no obligation to disseminate a draft in advance.

For those reasons the Inquiry in not persuaded that it is either necessary or, in the

circumstances of this case, appropriate to furnish such a report. The Inquiry would like to

make it clear that it has formed those views most particularly because it feels that the specific

procedures which, in the particular circumstances of the facts and issues which were within its

remit, it felt able to adopt closely resembled those which apply in a court. Different

considerations might well apply in respect of other inquiries (whether conducted under this

legislation or otherwise) where it did not prove practicable to adopt such procedures.

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Appendix 14 – General Guidelines on Payment of Legal Costs & Other Expenses

Fiosrúchán Faoi Alt 109 d’Acht Inquiry Under Section 109

An Garda Síochána 2005 Garda Síochána Act 2005

An Breitheamh Frank Clarke

Mr Justice Frank Clarke

General Guidelines on Payment of Legal Costs and Other Expenses to Witnesses and the Payment

of Expenses to other Persons who Attend before the Inquiry

Purpose of General Guidelines

1. These general guidelines have been prepared by the Minister for Justice and Equality, after

consulting Mr Justice Clarke, and with the consent of the Minister for Public Expenditure and

Reform.

2. The Inquiry operates in accordance with these guidelines but is independent in the

performance of its functions

3. These Guidelines provide for the payment of reasonable legal costs which are necessarily

incurred in connection with the Inquiry’s functions.

Expenses of a Person Attending before the Inquiry (other than Legal Costs)

4. A person who attends before the Inquiry, at its invitation or by direction, is entitled to payment of the expenses incurred by reason of that attendance.

5. The expenses to be covered are travel and transport costs, accommodation, meals and any other expenses that are necessarily incurred as a direct result of attendance before the

Inquiry.

6. Expenses related to loss of earnings will not be paid unless the person concerned can show to

the satisfaction of the Inquiry that s/he has suffered undue hardship by reason of his/her attendance.

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7. Expenses will not be paid to any serving public servant whose expenses have been met by

his/her employer.

8. Payment in respect of accommodation and meals will be made on the basis of vouched expenses, subject to the following upper limits:

• A maximum of € 108.99 in respect of an overnight stay;

• A maximum of € 33.61 in respect of a period of 10 hours or more;

• A maximum of € 13.71 in respect of a period of 5 hours or more.

9. Where possible, public transport (bus or rail) should be used. Taxis should only be used where

another reasonable alternative does not exist. In the event that use of a private car is necessary, expenses will be met at the rate of € 0.38 per mile / €0.24 per kilometre.

10. In this context, expenses do not include legal costs

Legal Costs Necessarily Incurred by Witnesses

11. A witness may request recovery of legal costs necessarily incurred by the witness in

connection with the Inquiry’s functions.

12. ‘Legal Costs’ means fees, disbursements, charges and expenses included in a bill of costs in respect of a barrister or solicitor.

13. Legal costs shall not be paid except where:

(a) The good name or conduct of the witness is called into question by any evidence received by the Inquiry, or

(b) Other personal or property rights of the witness are at risk of being jeopardised as a result

of any evidence received by the Inquiry

14. Notwithstanding paragraph 13, a person who attends before the Inquiry at its invitation may

be entitled to payment of legal costs incurred by reason of that attendance at the discretion of

the Inquiry.

15. Discovery costs may be included as legal costs. Payment of the costs of discovery will be

decided in the context of payment of overall legal costs.

16. The amount of legal costs to be paid by the Minister for Justice and Equality shall be assessed

by the Inquiry

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17. The Inquiry will not grant a direction that all or part of the legal costs incurred by a witness be

paid by the Minister unless it is satisfied that the payment comes within these guidelines, that

the legal costs were necessarily incurred, and that the level and amount of the costs are reasonable. The Inquiry will consider all relevant factors, including:

(a) the nature, complexity and extent of the evidence given to the commission by the witness,

(b) the nature, complexity and volume of any documents or list of documents provided by the witness to the commission,

(c) whether evidence given by or relating to the witness was given in private or in public,

(d) whether the witness was cross examined by or on behalf of other persons,

(e) whether there has been any improper failure by the witness to co-operate with the commission in its investigation and, if so, the degree of failure, and

(f) any potential consequences for the witness arising from the publication of the commission's report

18. The Inquiry, may at its discretion, limit the amount of legal costs recoverable in respect of such

representation.

19. The following are the maximum daily rates payable in respect of an appearance before the

Inquiry:

Senior Counsel

€788.27 per diem (excluding

VAT)

€98.50 per

(excluding VAT)

hour

Junior Counsel €394.14 per diem (excluding

VAT)

€49.25 per

(excluding VAT)

hour

Solicitor €624.00 per diem (excluding

VAT)

€78.00 per

(excluding VAT)

hour

20. If preparatory fees are granted by the Inquiry, the hourly rates at paragraph 19 apply.

Preparatory fees cannot be claimed for attendance days.

21. After considering all relevant factors, the Inquiry may direct that a witness’s representatives

be paid less than the maximum rates set out at paragraph 19.

22. The amounts payable in respect of affidavits furnished to the Inquiry or witness statements

required by the Inquiry are:

An affidavit of documents A maximum of €780.00, subject to the exemption set

out below

An affidavit verifying evidence A maximum of €390.00 per affidavit (to cover

payment to all legal representatives)

An affidavit A maximum of €390.00 per affidavit (to cover

payment to all legal representatives)

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A witness statement required by

the Inquiry

A maximum of €390.00 per witness statement (to

cover payment to all legal representatives)

23. To the extent possible, legal representation shall be granted on a joint basis to parties with

similar interests, and in any event, the costs incurred by such parties shall be assessed by

reference to the potential reduction in legal costs that could have been secured through such joint representation irrespective of whether such joint representation occurred, with the distribution of allowable costs to be determined by the Inquiry.

24. These guidelines are definitive as to all legal costs or expenses [(including heavy expenses)] that may be recoverable by a witness or a person attending before the Inquiry, whether

voluntarily or otherwise, who seeks to recover such costs or expenses from the Inquiry.

25. No payment shall be made in respect of brief fees, instruction fees or any other legal costs or

expenses, other than those legal costs and expenses expressly specified in these guidelines.

November 2015

SÍOCHÁNA ACT 2005 C M J F C · inquiry pursuant to section 109 of the garda sÍochÁna act, 2005...

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